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Incorporating RightsStrategies to Advance Corporate Accountability$

Erika George

Print publication date: 2021

Print ISBN-13: 9780199941483

Published to Oxford Scholarship Online: September 2021

DOI: 10.1093/oso/9780199941483.001.0001

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International Law, Corporate Law, and Governance Gaps

International Law, Corporate Law, and Governance Gaps

Chapter:
(p.17) 1 International Law, Corporate Law, and Governance Gaps
Source:
Incorporating Rights
Author(s):

Erika George

Publisher:
Oxford University Press
DOI:10.1093/oso/9780199941483.003.0002

Abstract and Keywords

This chapter explains how domestic US corporate law ignores human rights considerations and contributes to governance gaps. It offers an overview of the conceptual foundations of the corporate form that serve to place rights at risk. It argues that voluntary corporate social responsibility initiatives, leadership on the part of management, and more inclusive configurations of corporate governance can contribute to creating better business practices consistent with respect for human rights. This chapter also explains how international human rights law is inadequate to address human rights abuses where corporate actors are implicated. It offers an overview of the conceptual foundations of international law that render global business enterprises difficult to regulate and hold to account for alleged abuses. It argues that a wide array of actors beyond states must be recognized as possessing the potential to participate in the creation of policies to regulate business practices with respect to human rights.

Keywords:   international law, corporate law, human rights, corporate social responsibility, corporate personhood, benefit corporation, labor rights, Indigenous peoples, child labor, Alien Tort litigation

The rise of the modern corporation has brought a concentration of economic power, which can compete on equal terms with the modern state.

—Adolf Berle, The Modern Corporation (1932)

Introduction

Today, large and powerful private corporations operate in and across many nations. These transnational corporations pose a significant conceptual challenge to international law.1 The operative concepts of the law of nations do not clearly delineate the duties of entities that are not nations. Conventional approaches to international law are inadequate for addressing the challenges that transnational corporations present. Public international law, as conventionally conceived, fails to adequately govern the conduct of private nonstate actors, such as transnational business enterprises. The resulting gap in global human rights protection and accountability when a private business enterprise contributes to or causes rights violations presents a theoretical problem for international law. To fully appreciate the implications of this global human rights governance gap, it is important to understand the conceptual foundations, the structure, and the basic sources of international law.

This chapter explains why international human rights law has been inadequate to address human rights abuses where nonstate corporate actors are implicated. It offers an overview of the conceptual foundations of international law that render global business enterprises difficult to regulate and hard to hold to account for alleged human rights abuses. It also explains how domestic US corporate law ignores human rights considerations, further widening global human rights governance gaps. This chapter also provides an overview of the conceptual (p.18) foundations of the corporate form that serve to place rights at risk. It argues that voluntary corporate social responsibility initiatives, leadership on the part of management, and more inclusive configurations of corporate governance can contribute to creating better business practices consistent with respect for human rights. It concludes that a wide array of actors, beyond states, must be recognized as possessing the potential impact human rights.

I. International Law

International law has conventionally been understood as limited to laws that govern relations between nations. Made by and for nations to regulate relationships among independent, sovereign nation-states, international law is literally the “law of nations.” As influential international jurist Philip C. Jessup has explained in his 1947 article, “The Subjects of a Modern Law of Nations,” states are the subjects of international law, other entities or individuals are only its objects.2

A. The Position of the “Legal Person” in International Law: Sovereign Powers and Privileges

Historically, international law has drawn a sharp distinction between the subjects of international law that have rights and responsibilities, and mere objects, presumably without rights or responsibilities. The sovereign state enjoys its status as a “legal person” in international law.3 As legal persons, sovereign states possess power to own property, to make international agreements, and to join international organizations. Sovereign states also have the power to seek legal remedies.4

States are accepted as the sole “subjects” of international law imbued with “international legal personality.” Recognized states enjoy full participation in the international legal system and “can affect and be affected by international law and can enforce international law by bringing at least some international claims.”5 In contrast, “objects” of international law neither enjoy the powers of the subjects of international law; nor are they understood to possess legal personality. Objects are nonstate actors, such as natural persons, private corporations, natural resources, and nongovernmental organizations. In international law, power is (p.19) understood to reside with sovereign nation-states, the subjects of international law, while all objects must submit to the power or will of these subjects.

B. Sources of International Law: State Conduct, Conventions, Custom, and Common Principles

States create the substance of international law. Sovereign states make international law in cooperation with other states, through treaties or by establishing patterns of conduct and practices over time. The commonly recognized sources of international law are codified in Article 38(1) of the Statute of the International Court of Justice (ICJ).6 The statute provides that treaties, custom, and general principles of law are the primary sources of international law. In addition, judicial decisions and the writings of jurists and scholars may offer evidence of the existence of emerging rules or norms regulating the conduct of states.

The ICJ also recognizes the additional “subsidiary” sources of judicial decisions, and scholarly works demonstrate the acceptance that can transform a nonbinding standard into a binding rule of international law. Conventions, custom, and common principles remain the best evidence of the existence of a binding rule of international law.

1. Conventions

The terms “treaty,” “convention,” “covenant,” and “accord,” are often used interchangeably to describe an international agreement created by states that consent to be legally bound by its contents. The international law of treaties has been codified in the Vienna Convention on the Law of Treaties. Article 2 defines a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”7 Treaties may be bilateral (an agreement between two states, such as an investment treaty), or multilateral (an accord among several states, such as an environmental treaty). Treaties may also create international institutions and regulate a range issues from taxes, trade, and investment, to human rights and the environment. States enter into treaties.

(p.20) 2. Custom and State Conduct

Custom is a “general practice accepted as law.”8 Customary international law is created after a general and consistent pattern of state conduct emerges over time that states understand to be obligatory.9 To be considered international law, a rule or principle must be accepted by states as being legally binding. Customary law is created in part by the conduct of states, which constitutes state practice.

The actions or omissions of states are the practices that generate principles of customary international law. Official government acts are state practices. Acts illustrative of state practice include official statements made at international meetings, representations made in diplomatic exchanges and correspondence, as well as legislation and judicial decisions that address international issues.10

There is a customary law of international human rights. Customary international law binds even those states that have refused to ratify human rights treaties or that have ratified treaties but taken reservations intended to nullify particular rights protections.11 For example, any country that “practices, encourages, or condones” as a matter of state policy: “1) genocide, 2) slavery or the slave trade, 3) murder or disappearances, 4) torture or other cruel, inhuman or degrading treatment or punishment, 5) prolonged arbitrary detention, 6) systematic racial discrimination, or 7) a consistent pattern of gross violations of internationally recognized human rights” violates customary international law.12

In sum, state conduct determines international law. Whether through developing custom or ratifying conventions, sovereign nations are the only entities currently recognized in international law with the capacity to create binding legal obligations. Yet there are other nonstate entities operating in the international arena and engaged in conduct with economic, political, social, and security consequences.13

C. Others in International Law: Empire, Global Business Enterprise, and Economic Influence

While not imbued with legal personality for the purpose of creating law, business enterprises can exert considerable influence on international relations. (p.21) Corporations are nonstate actors that enjoy economic and political influence, if not international legal personality. The relationship between countries and corporations has been simultaneously symbiotic and strained.14 Anxieties over corporate power eclipsing the power of the sovereign state are not new but rather persist.

The “proper mix of functions” for the colonial-era crown-charter companies was contested from the early days of the corporate form. The example of the British East India Company is instructive. At the height of its power, it “ruled over one-fifth of the world’s people, generated a revenue greater than the whole of Britain and commanded a private army a quarter of a million strong.”15

The company’s activities in India influenced trade across the British Empire. Historian Nick Robins explains: “A terrible triangle was formed with African slaves being purchased in part with Indian cotton goods, then being sold in the Americas for new-mined gold and silver, which in turn found its way via London to India where it procured more textiles.”16 The money made in Bengal, India, enabled the company to triple the funding devoted to its tea trade in China.17 As the demand for tea increased, so did the desire to trade with China.18 The company facilitated the export of opium produced in Bengal to China. The company later financed the Opium Wars that were precipitated by China’s efforts to reject the opium trade due to the social disruption opium addition was causing in the country.19 The company’s tea trade would also come to symbolize oppression in America. The Boston Tea Party, the symbolic start to America’s Revolutionary War, was a protest over the influence the East India Company exercised.20

In his 1776 book, The Wealth of Nations, philosopher Adam Smith argued that the role of trader and sovereign were incompatible.21 During the age of empire, it was for a time presumed that commercial actors were traders first, with (p.22) responsibility for territorial rule a distant second.22 However, as the revelation of atrocities, excesses, and corrupt conduct of the East India Company became increasingly difficult to deny, agents and employees of the East India Company were no longer mere merchants but rather had become de facto emperors or quasi sovereigns extending Britain’s reign over the far reaches of the world.23 Robins described the East India Company as “a monstrous combination of trader, banker, conqueror and power broker.”24 Ultimately, the British public rejected the company’s overreach and called for reforms while people living under colonial rule resisted and revolted against the Company.

Generations after the imperial expansion of the East India Company and its collapse, a different way of globally exercising commercial power to promote good was introduced as an experiment for addressing apartheid in South Africa. The Reverend Leon Sullivan, an African American pastor, used his influence as a member of the Board of General Motors to oppose racial inequality. Apartheid, South Africa’s entrenched system of separation and oppression based on race was an organizing principle of life in the country and a fact of doing business there. South African law required strict categorization and separation of the races, and public policies were designed to ensure exclusion and inequality in every sphere of life and death. With cemeteries even segregated by race, the workplace was no exception.

General Motors was the largest employer of Blacks in South Africa. Beginning with employment, Sullivan sought to dismantle discrimination based on notions of racial superiority and inferiority. Ultimately, he arrived at the conclusion that “companies must practice corporate civil disobedience” against racist laws. Sullivan issued an ultimatum that “Mandela must be freed, apartheid must end, and blacks must vote.” With anything short of these aims, Sullivan threatened that he would “bring every American company I can out of South Africa.”25

His was no idle threat. The estimated $2.3 billion invested in South Africa by US companies comprised one-fifth of the country’s foreign direct investment, primarily in the important industry sectors of oil, automotive, computer technology, and minerals.26 Three US firms controlled approximately 44 percent of the country’s petroleum market.27 The US firms GM, Ford, and Chrysler controlled one-third of the country’s automotive manufacturing.28 The three largest (p.23) US employers in South Africa were mining concerns. US companies dominated the computer market, with five US firms among the country’s top seven in sales.29

As a private individual, Sullivan introduced a voluntary code of practice for US companies operating in South Africa. It would come to be adopted by many of the world’s major multinational corporations.30 The Sullivan Principles as issued in 1977 called for:

  1. 1. Nonsegregation of the races in all eating, comfort, and work facilities.

  2. 2. Equal and fair employment practices for all employees.

  3. 3. Equal pay for all employees doing equal or comparable work for the same period of time.

  4. 4. Initiation of and development of training programs that will prepare, in substantial numbers, Blacks and other nonwhites for supervisory, administrative, clerical, and technical jobs.

  5. 5. Increasing the number of Blacks and other nonwhites in management and supervisory positions.

  6. 6. Improving the quality of life for Blacks and other nonwhites outside the work environment in such areas as housing, transportation, school, recreation, and health facilities.31

In 1984 he added a seventh and final principle:

  1. 7. Working to eliminate laws and customs that impede social, economic, and political justice.32

Promulgated by a private individual and adopted by many of the world’s major multinational corporations, the Sullivan Principles were crafted to offer ways in which business enterprises operating in South Africa, a country with racist laws and a racist system of government that violated the human rights norms, could conduct business more consciously. This required corporations to operate in a manner contrary to prevailing laws and attitudes in a sovereign state.

Initially, twelve major US multinationals with South African operations would adhere to a code of conduct for conducting business in the country concerning the treatment of nonwhite workers.33 As participants grew in number (p.24) and the principles became important domestically and internationally, Sullivan was credited with “accelerating the process of socio-political change in South Africa.”34

Sullivan successfully managed to persuade the corporate community that complicity with a racist regime was bad for business. However, after little change in South Africa, Sullivan joined calls for divestment and more than one hundred companies adhering to the principles left the South African market.35 By the end of apartheid in 1994, over one hundred fifty US corporations and their South African subsidiaries had spent millions to bring their business practices into compliance with them.36

D. Economic Globalization and Business Enterprises

The classic state-centered view of international law is increasingly difficult to reconcile with the rise of private nonstate actors that have a significant effect on nations and individuals.37 Traditional approaches to international law are no longer descriptively or conceptually adequate. The process of economic globalization fueled by private enterprise is eroding the hegemonic place of the state in international law as the subject and source of international law.38 As a result of globalization, the place where power resides in the international system is growing more diffuse. Authority for traditionally public functions is being ceded to or assumed by private enterprise.

Now nearly half of the world’s largest economic entities are corporations, not countries.39 Commercial enterprises may not have international legal personality, but they do have relative clout in the international arena with revenues that eclipse the gross domestic products of some of the sovereign states in which they operate.

Despite the growing influence of corporations on and in sovereign states, international law continues to treat corporations as objects without international (p.25) legal personality.40 International law does little to acknowledge or address corporate power even though powerful corporations exert influence on global politics and economics. The growing power and influence of corporate actors calls into question the conventional distinction between subjects and objects, and the status of states as the central focus of in international law. Because private commercial enterprises are merely the objects, not subjects, of international law, they have not been understood to bear the same responsibilities as nations.

The question of whether corporations can be liable for violations of the law of nations is complicated by the doctrinal distinction between subjects and objects, and between the public authority of sovereign nations and the private power of transnational corporations: Facebook is not France. Currently, corporations cannot commit to or become parties to binding international human rights instruments as states can. Under international law, a private commercial enterprise does not have the requisite legal personality to make hard law. The independent obligation, if any, of multinational enterprise to conform to international human rights standards is far from clear.41 There are often regulatory gaps between the standards of the corporation’s home country and its host country. For example, human rights and labor protections may be strong in some countries and weak in others. Therefore, corporate action often occurs in a regulatory gap where there is little international law to guide business practices abroad.

II. Public International Human Rights Law and Private Corporate Actors

The atrocities of World War II inspired the creation of our contemporary system of international human rights law.42 In the postwar period, the international community established institutions to prevent threats to peace and executed instruments to promote social and economic progress. The universally agreed-upon system of collective peace and security contained a central commitment to the protection of human dignity and the promotion of freedom.43 By (p.26) establishing the United Nations in 1945, the international community aimed to create conditions under which justice and respect for international law would be sustained.44

The General Assembly of the United Nations unanimously adopted the Universal Declaration of Human Rights (UDHR) on December 10, 1948, a day now celebrated as International Human Rights Day.45 As with most resolutions of the General Assembly, the UDHR was not understood to be legally binding or enforceable at the time.46 Unlike many other General Assembly resolutions, however, numerous legally binding international instruments subsequently entered into force and have codified many of the substantive rights contained in the UDHR.47 As a result, principles contained in the UDHR have become “hard law,” requiring a nation’s compliance even though it was initially a nonbinding statement of “soft law.”

The UDHR remains the international community’s central proclamation of “a common standard of achievement for all peoples and all nations,”48 and contains a range of civil, political, socioeconomic, and cultural rights. Certain rights under the UDHR are understood to be “positive,” in that they may require some form of government intervention in order to be realized. For example, the right to education may require governments to provide a system of public education accessible to all without discrimination. Other rights in the UDHR are “negative,” in that these rights require governments to refrain from interference in order for them to be protected. For example, freedom from torture requires that governments refrain from engaging in torture. Similarly, enjoyment of the right to freedom of expression depends on governments refraining from censorship.

The UDHR is universal in the sense that it speaks to the entitlement and obligations of everyone, everywhere. It extends beyond states and provides that “every individual and every organ of society” should promote respect for, and (p.27) effective recognition of, the rights contained within it through “teaching and education” and other “progressive measures, national and international.”49

A. International Human Rights Instruments and Institutions

Human rights are now enumerated and guaranteed in numerous treaties, and via custom, general principles, and other sources of international law.50 Chief among the many legally binding international instruments that have codified the substantive rights contained in the UDHR are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The International Bill of Human Rights consists of the UDHR, together with the ICCPR and the ICESCR. The 1993 Vienna Declaration on Human Rights clarifies that all of the rights contained in the International Bill of Rights—civil, political, socioeconomic, and cultural—are interdependent, interrelated, and indivisible.51

Labor rights protect the human rights of workers. Fundamental labor rights are set forth in the International Labour Organization’s (ILO’s) Declaration on Fundamental Principles and Rights at Work, and specified in eight core ILO Conventions.52 Labor rights include the right to work as well as rights at work. International law enshrines four fundamental labor rights: (1) freedom of association and effective recognition of the right to collective bargaining; (2) the elimination of all forms of forced or compulsory labor; the effective abolition of forced or compulsory labor; (3) the effective abolition of child labor; and (4) the elimination of discrimination with respect to employment and occupation.53

There are two levels of international institutional arrangements in place to promote the protection of human rights in the UN system. A new UN Human Rights Council replaced the 1946 UN Commission on Human Rights in 2006.54 An intergovernmental body composed of forty-seven elected UN member (p.28) states, it reports directly to the full General Assembly.55 It oversees the Universal Periodic Review process to assess compliance with human rights commitments by all UN member nations56 and can also propose new international human rights laws.57 The council’s complaint procedure allows individuals and organizations to bring attention to human rights abuses.58

There are also different monitoring mechanisms for each of the basic international human rights treaties. For example, the substantive content of the rights contained in the ICCPR are interpreted by the Human Rights Committee, while the substantive content of the rights contained in the ICESCR are interpreted by the Committee on Economic, Social and Cultural Rights. States that are parties to the basic human rights treaties are to submit reports on their efforts to advance the rights recognized in a given treaty.59 In addition, there are regional institutions that monitor compliance with regional rights instruments.

The Office of the High Commissioner for Human Rights (OHCHR) supports both the charter-based and treaty-based human rights mechanisms in the UN system. The OHCHR also supports a range of special thematic mandates to monitor human rights conditions conducted by independent experts through its Special Procedures Branch, including the UN Working Group on Business and Human Rights, established in 2011.60 In 2012, the Human Rights Council established a mandate on human rights and the environment to study human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment.61

International human rights law is evolving to expand into emerging areas that may present risks to the enjoyment of rights. State conduct through participating in policymaking processes serve to generate norms and create custom. There is a trend at the international level toward understanding the relationship of business to the enjoyment of human rights. International law regulates states. States must promote, protect, and fulfill human rights guarantees. Human rights treaties are generally silent as to the obligations of others. The UN human rights (p.29) mechanisms are taking on contemporary concerns and creating soft law and standards to address business and human rights and environmental rights.

B. Human Rights Abuses Involving Corporate Actors

No longer are nations thought to be the only entities implicated in human rights violations; corporations are increasingly implicated along with governments. International human rights advocates have conventionally emphasized abuses perpetrated by governments and the relationship between states and individuals—protecting individual rights from state intrusion and abuse. Greater attention now is being directed toward questioning the role of private nonstate actors, principally multinational corporations, in conduct that contravenes generally accepted principles of international human rights law. Allegations that multinational corporations are directly engaging in human rights violations or are aiding and abetting the efforts of repressive governments to abuse human rights are increasing.

The growing power of the modern multinational corporation brings with it an increased potential to advance or undermine respect for the protection of human rights and the environment.62 Today, human rights activists, investors, and others are asking how to align the conduct of corporations with human rights standards and how to hold corporations accountable when their conduct deviates from respect for human rights.63

Under international law, governments assume obligations to protect, promote, fulfill, and respect human rights. It is therefore incumbent upon the state to ensure that all actors within the state’s territorial borders, or under the state’s jurisdiction and control, comply with laws enacted to protect human rights. However, in light of the shifting power relationships between the state and the corporation, the picture is more complicated.

Several factors add to the complexity, not least the fact that some poorer states are not as economically powerful as the multinational corporations they host.64 Compliance and enforcement procedures can be expensive and may exceed the resources of poor and developing nations.65 Moreover, even if a poorer country were able to enact human rights laws and enforce compliance, it might (p.30) be unwilling to do so because it would risk losing foreign investment.66 Instead of protecting its citizens by enacting and enforcing environmental and human rights protections, the state may elect to promote foreign investment by rejecting regulations that appear to be burdensome to business. Investors are often perceived to favor regulatory environments with lower standards and low production costs.67

C. Corporate Complicity in International Human Rights Violations

Initially, human rights organizations, such as Amnesty International and Human Rights Watch, focused their monitoring efforts on governments. However, more recently, rights groups have expanded their field of vision to include private actors. Activists working on social, economic, and cultural rights now highlight the role of private industry in impeding and advancing human rights. Allegations that multinational corporations are directly engaging in human rights violations or are aiding and abetting violators have increased.

Human rights activists argue that when corporations “fail to ensure that their operations do not depend upon, benefit from, or contribute to human rights abuses committed by others,” they are complicit in violating human rights.68 The lack of corporate accountability and the inability of individuals and communities to obtain effective remedy to redress violations are subjects being examined by human rights advocates. Human rights organizations have investigated the impact of commercial activity on a range of rights and the environment.69

Although international human rights instruments do not directly bind business enterprises as parties to treaties, businesses can affect rights. More frequently than direct involvement in abuses, corporations are indirectly implicated in violations because of their relationships with third parties, such as corrupt or repressive government regimes. There have been allegations leveled against corporations, even claiming corporate complicity in violations of jus cogens—actions that are, without exception, always prohibited under international law.

For example, IBM’s technology was used to aid the administration of the genocide of millions of European Jews during World War II; the Nazis were one of (p.31) IBM’s largest customers.70 Under the Nazi regime, Germany sent millions of Jewish people and other disfavored minorities to concentration camps, where they were either slaughtered or used for slave labor.71 IBM’s punch card technology ultimately was used by the Nazis to track implementation of Hitler’s “Final Solution.”72

At the start of World War II, IBM was supplying Nazi Germany with more than a billion punch cards per year.73 IBM provided training, sold replacement punch cards, and employed technicians to service and repair machines for the Nazi regime.74 Dehomag, IBM’s German subsidiary, designed a census package to count and classify citizens. Dehomag recruited, trained, and even fed the large number of temporary workers needed to process the census and track Jewish people.75 The IBM technology enabled the Nazis to “achieve scale, velocity, [and] efficiency.”76 Ironically, IBM technology also helped the Allies prosecute Nazi defendants during the Nuremberg trials by introducing instantaneous translation.77

IBM was not alone in giving aid to a genocidal regime. More than six thousand German firms used forced or slave labor.78 German chemical company I.G. Farben was one of those firms. It also produced the gas that was used in concentration camp gas chambers to exterminate millions.79 By 1945, Farben had an estimated one hundred thousand people working in forced labor conditions or as slaves.80

At the end of World War II, the United States and the Allies prosecuted the major Nazi war criminals in a series of trials in Nuremberg, Germany.81 One of the Nuremberg trials was specifically for Farben’s twenty-four corporate board members.82 Farben itself was never tried for any crimes, but the members of the corporation’s board were charged with helping Hitler reach power, with waging (p.32) aggressive war, and for the commission of crimes against humanity, including the use of slave labor.83 The Allies seized Farben, liquidated it, and created a new legal entity called Bayer AG.84 In 2000, pursuant to an agreement between the United States, Germany, and other governments, the firms that used forced labor during the Nazi regime contributed to the establishment of a fund to compensate those who were enslaved or their heirs.85

Leading companies, including Lehman Brothers, Union Pacific Railroad, and JP Morgan Chase, have been sued for unjustly profiting from the institution of chattel slavery in the United States.86 Many multinational corporations representing a range of industries were sued for their active collaboration with the repressive racist regime of apartheid in South Africa prior to the country’s transition to democracy.87

1. Corporate Contributions to Compromising Civil Rights, Political Rights, and Human Security

Most corporate involvement in rights violations will not rise to the level of a jus cogens violation of international law. More common are instances in which the actions of a corporation or a corporation’s failure to act causes or is connected to an abuses. The following offers examples of the ways different industry sectors impact different rights.

International human rights law protects the rights to life, physical integrity, and psychological integrity. Article 3 of the Universal Declaration of Human Rights recognizes that everyone has “the right to life, liberty and security of person.”88 While security is perhaps more associated with antiterrorism concerns and border protection, the operative understanding of security here concerns ensuring that human dignity is protected.89 Human security also finds protection in Article 9 of the ICCPR, in which the rights to liberty and security of person are protected.90 Article 6 of the ICCPR protects the right to life, while Article 7 prohibits conduct that is counter to the right to security of the person or that could put human life at risk, such as by torture; by cruel, inhuman, or degrading treatment or punishments; or by medical experimentation without free (p.33) and informed consent.91 Nations are called upon to protect the right to security of the person against violence or bodily harm without regard to what type of individual or entity, whether a public agent of the state or a private actor inflicts the abuse—whether a government official, an agent of the state, or a private citizen acting in his or her own personal capacity.92 Human rights organizations have documented numerous instances of corporate conduct that threatens the right to security of the person.

In recent years, several cases have been brought demanding that corporations be held accountable for playing a role in violating universally recognized fundamental human rights. Extractive industry corporations have been sued in US federal courts for allegedly engaging in human rights abuses associated with operations in Burma,93 Cameroon,94 Colombia,95 India,96 Indonesia,97 Nigeria,98 and Peru.99 The Royal Dutch Petroleum Company defended itself against allegations that it aided and abetted the brutal destruction of peaceful resistance to aggressive oil development in Nigeria.100 Peru Copper Corporation defended itself against allegations that pollution from its operations caused the plaintiffs severe lung disease.101 Freeport-McMoran, Inc., defended itself against allegations that it engaged in cultural genocide by destroying the local Amungme tribe’s habitat and religious symbols, forcing the tribe to relocate.102

(p.34)

In addition to personal security, international human rights law also protects civil and political rights. The ICCPR prohibits discrimination and protects freedom of expression among other rights.105 Human rights monitoring organizations have documented how corporations in a range of different industries have affected certain civil and political rights. The media has reported on instances of abuses involving business enterprises.

Telecommunications companies have been sued for violating the privacy rights of users and supporting systems of surveillance and repression.106 Yahoo! was sued for its alleged complicity in the arrest and detention of Chinese dissidents after it provided identifying information to the government.107 Facebook defended itself against allegations that its data privacy protection policies and practices were deficient and not disclosed to shareholders in the wake of revelations that Cambridge Analytica was misappropriating millions of Facebook user’s information for use in political campaigns.108

(p.35) The rise of the internet communications industry has coincided with a worldwide rise in violence attributed to online content in the form of hate speech and disinformation.109 This rise in violence has impacted minorities in particular.110

(p.36)

2. Corporate Complicity in Violations of Socioeconomic Rights

The ICESCR protects entitlements that allow humans to flourish.120 The rights contained in the covenant encompass the necessities to live a dignified life. Among other rights, the ICESCR guarantees the rights to health in Article 12.121

When pharmaceutical companies do not adhere to exacting ethical research, drug promotion, or pricing standards, health can be harmed. Pharmaceutical corporation Johnson & Johnson was forced to defend itself against allegations that the company fueled the US opioid addiction crisis by “serving as a top supplier, seller and lobbyist.”122

(p.37)

3. Corporate Complicity in Violating the Cultural Rights of Indigenous Peoples

Although there is no firm definition of Indigenous peoples, international law recognizes that certain rights are enjoyed when individuals belonging to a (p.38) particular social group come together as a community entitled to protection.132 Indigenous peoples are members of an identifiable community, often with a consistent or historic connection to a specific region. Indigenous communities may remain distinct from the dominant populations of a nation and may maintain a distinctive language or cultural or social practices.

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP)133 and ILO Convention 169134 recognize the rights of Indigenous populations around the world to practice cultural traditions and religious expression in their communities as well as to enjoy traditional forms of communal land tenure.135

The principle of “free, prior, informed consent” (FPIC) protects the right of Indigenous peoples to be involved in decisions concerning economic development and infrastructure projects that will impact them. Accordingly, Indigenous populations can withhold or give consent to such projects. At a bare minimum, Indigenous communities must be informed and consulted in advance of government approvals of projects that will impact their resources or territories. A number of the provisions of the UNDRIP support the FPIC principle, and community consultation continues to gain acceptance in practice. FPIC adherence is a priority for many Indigenous populations affected by mining and drilling activities.136 While there are some limited exceptions, as a general rule, consent is required for extractive projects on Indigenous lands pursuant to FPIC.137 Accordingly, this category of rights can be especially relevant for the activities of extractive sector companies when natural resources are on or impact Indigenous lands.

When companies in the extractive sector fail to address pollution, human rights are harmed in ways that are interrelated and interdependent. For example, the right to a livelihood for those who fish and farm is placed at risk by unmitigated pollution. When the rights to food and water are placed at risk due to environmental destruction or displacement, the right to health and, in extreme (p.39) instances, the right to life can be placed at risk if business enterprises do not assess the social and environmental impacts of production.

4. Corporate Complicity in Labor Rights Violations

Human rights and labor rights groups have documented alleged abuses of labor rights in the agriculture, apparel, and extractive industry sectors, as well as instances of disregard for those rights. Labor rights in international law include not only the right to work but also rights at work.141 The ILO’s Declaration (p.40) on Fundamental Principles and Rights at Work sets forth rights that are further specified in eight core ILO Conventions.142 Freedom of association and effective recognition of the right to collective bargaining are guaranteed by ILO Conventions 87 and 98.143 The elimination of all forms of forced or compulsory labor is required by ILO Conventions 29 and 105.144 ILO Conventions 138 and 182 mandate the effective abolition of child labor, with attention to the worst forms of child labor.145 ILO Conventions 100 and 111 call for the elimination of discrimination with respect to employment and occupation.146

These labor rights also find expression in other international human rights instruments. For example, freedom of association and the right to collective bargaining are recognized in Article 22 of the ICCPR and in Article 8 of the ICESCR.147 A call for the elimination of forced labor is also contained in Article 8 of the ICCPR’s prohibition of slavery and servitude.148 Article 10 of the ICESCR mandates a minimum working age for children and prohibits employment of children in hazardous occupations.149 The elimination of discrimination in pay and compensation as well as the right to just and favorable conditions of employment are stated in Article 7 of the ICESCR.150

Food and beverage corporations have been sued for allegedly aiding and abetting human rights abuses linked to repressing labor organizing in Colombia,151 in Guatemala,152 and in Turkey.153 For example, Coca-Cola faced allegations that it violated human rights in Colombia.154 The company was (p.41) implicated in the murder of Isidro Segundo Gil, an activist killed after attempting to organize a trade union.155 Fresh Del Monte Produce was sued for allegedly engaging in human rights violations in Guatemala.156 The company allegedly organized an armed gang of employees, agents, and government officials who kidnapped, tortured, and coerced the plaintiffs.157

(p.42)

Labor violations are not limited to farms and plantations. Factories that manufacture consumer goods such as apparel and electronics have also been implicated in abuses. A number of cases have been filed claiming that business enterprises in apparel and other industries have engaged in or benefited from slave labor linked to human trafficking.173 In Liberia, the Bridgestone Corporation and Firestone Natural Rubber Company defended themselves against allegations that they used slave and child labor.174 Gap, Inc., defended (p.43) itself against allegations that it violated criminal laws with respect to kidnapping, theft, theft of services, theft by extortion, receiving stolen property, and criminal coercion in Saipain.175 Apple has come under scrutiny for the poor labor conditions documented in the Chinese factories manufacturing its products.

5. Climate Change Concerns, Environmental Challenges, and Corporate Conduct

The human right to a clean and healthy environment was not expressly enumerated in early human rights instruments, but a growing body of international declarations and soft law standards provide a firm foundation for the recognition of environmental human rights.179 Beyond a focus on the natural (p.44) environment,180 early international environmental legal norms did recognize a relationship between environmental quality and human dignity in terms of rights. The visionary Stockholm Declaration on the Human Environment,181 the outcome of the 1972 UN Conference on the Human Environment, sets forth several concepts that continue to influence present debates over the existence of environmental human rights and their content. It laid the foundation for an appreciation of the relationship between the preservation and enhancement of the environment and the enjoyment of basic human rights.

Although a soft law instrument, the Stockholm Declaration provides a strong statement about the imperative of environmental protection. According to Principle 1 of the Declaration:

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.182

The Stockholm Declaration presents the relationship between the environment and human rights as inseparable, interrelated, and interconnected.

Climate change is both an environmental protection issue and a human rights issue. For example, “climate change refugees” or “environmental migrants”—those “persons or groups of persons who, predominantly for reasons of sudden or progressive change in the environment that adversely affects their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently”183—are already on the move. The Environmental Justice Foundation184 estimates that extreme weather events related to climate change, such as floods, storms, heat waves, and drought, are already displacing 41 people per minute, or 21.5 million people per year.185

As the number of people moving across borders increases, so too has opposition to migration and the mistreatment of migrants.186 Migration has become a (p.45) political flashpoint as fears and anti-immigrant sentiments mount in receiving countries.187 This anti-immigrant sentiment serves to create conditions where the human rights of “climate-change refugees” and other conventional refugees could be put at risk as they seek new places to make a home in the world. People are changing their country of residence in response to the changing climate.188

The challenge of addressing climate change is connected to respect for human rights because the adverse impacts of the changing climate disproportionately burdens the most vulnerable populations. The indirect effect of climate change on basic human needs is expected to lead to increased pressures on societies, and potentially to conflict or political instability as prices for food, energy, and other basic commodities essential to human existence increase.189

In 2014, all seventy-eight UN Human Rights mandate holders released an unprecedented joint statement to highlight the risks climate change would pose to human rights.190 The joint statement urged states “to make sure that human rights are at the core of climate change governance.”191 Fossil fuels companies are under growing pressure.

(p.46)

These are just a few examples of the ways in which businesses can impact the enjoyment of human rights. These examples illustrate the point that particular business decisions can have devastating consequences on communities. In many cases victims of violations remain without remedy. In some industry sectors there is a growing appreciation that impacts are important human rights risks that are real and that the business community has a responsibility to do better. These examples also show the potential to create change in corporate conduct by bringing pressure to bear on business to do better and incorporate rights into planning and operating procedures.

III. Corporate Law

Conventional conceptions of the corporate form, and theories of corporate governance, contribute to the development of business policies and practices that place human rights at risk. Limiting corporate liability to the institution while (p.47) shielding the individuals responsible for making decisions from accountability, combined with incentives to minimize costs at the cost of respect for human rights, has left little room for rights considerations to be taken into account. Market practices emphasizing quarterly earnings reports and pressures to meet analyst estimates in the short term create incentives for a “managerial myopia”196 that is blind to risks to human rights.

The increasing influence and impact of corporate power in the global economy in general, and the impact of business interests on human rights in particular, warrants an examination of how certain theories of the corporate form operate to reduce the importance of recognizing the social and moral responsibility to respect human rights. To that end, I describe the defining features of the corporate form and competing theories of its purpose. I discuss corporate personhood and the rights and responsibilities of corporations. I present debates about the obligations that private corporate actors owe to the public. Finally, I offer an account of alternative structures or variations of the corporate form and doctrines that provide opportunities for businesses to advance human rights. I argue that these recent developments demonstrate a desire on the part of the public for business enterprises to be responsive to the social and environmental issues confronting society.

A. The Purpose of the Corporate Person and Shareholder Primacy

The corporation is a form of organizing business activity.197 It enables a business to raise capital from investors. The business retains managerial control over its activities but distributes a portion of its profits to investors. A corporation is a legal entity separate and apart from those who own or manage it.198

Writing in 1819, US Supreme Court Chief Justice Marshall explained the features of the corporate form of organizing commercial relations as follows:

A corporation is an artificial being, invisible, intangible, and existing only in the contemplation of the law. Being the mere creature of law, it possesses only those properties, which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed (p.48) best calculated to affect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual.199

In contrast to international law, US law recognizes the corporation as an independent “legal person” with “legal personality.”200 As independent legal persons, corporations enjoy certain rights, privileges, and immunities comparable to those enjoyed by natural human persons.201 Corporations can contract, sue, own property, and hold ownership interests in other business enterprises.202

In Santa Clara v. Southern Pacific Railway, the US Supreme Court extended legal personality to the corporate form of business organization. Writing for a unanimous Court in 1886, Chief Justice Waite simply stated:

The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does.203

Santa Clara rests on an unwritten rationale. The court draws no distinction between the individual natural person and the incorporated business institution. Since the Santa Clara ruling, corporate personhood has provided a broader scope of immunity for corporations from government interference because individuals have rights that must be respected by government.204

Where commercial interests are at issue, US courts have given wide latitude to the rights of the corporate person. The US Supreme Court, however, has made multiple decisions over the years providing more rights to corporations by conceptualizing companies as comprised of individuals that possess rights. For instance, corporations enjoy due process rights205 and the right to equal (p.49) protection.206 The right to expression has also been extended to corporations through legal doctrines protecting commercial speech and even religious expression.207

Professor John Flynn has argued that the development of a doctrine of personhood was inevitable and that, in order to implement laissez-faire capitalism, it had to become a constitutionally mandated ideological baseline for government economic policy.208 According to Flynn, the decision was consistent with the intellectual and ideological commitments of the Court in the context of the industrial revolution and a postbellum Civil War economy characterized by a shift from an agrarian to a capitalist manufacturing economy. Communications and transportation networks were also expanding rapidly. Because potential for economic progress was understood to depend on the business community, powerful political constituencies did not want economic expansion to be slowed down with government regulations and, as a result, were willing to exclude other social concerns.

Metaphorically and rhetorically, corporate personhood provided support for legal reasoning to recognize rights and privileges for corporations, however, recognition of the corporate form as a unitary entity through corporate personhood also created certain efficiencies that allow for greater administrative ease. Put another way, a corporation is a convenience intended to be an efficient instrument for conducting commerce that allows for the aggregation of capital.

Conducting business in the corporate form brings several advantages and efficiencies including, among others: (1) shareholder exemption from personal liability; (2) immortality for the enterprise; (3) centralized management and standardization of processes/procedures; (4) access to capital; and (5) independence for the enterprise as a separate entity with legal capacity.209 The shareholder in a company cannot be held personally liable for any harm caused to others. Losses are limited to the amount invested in the company. This creates an incentive to take on risk without personal consequences past a certain point.

In his landmark 1932 book, The Modern Corporation, Professor Adolph Berle argued that the private corporation was giving way to a “quasi-public” corporation.210 For Berle, the private corporation is “quasi-public” because it depends on capital from a group of investors described as the “investing public.”211 He (p.50) posited that a private corporation assumes obligations toward the investing public when it uses the open market to sell its securities. It followed for Berle that the modern corporation had “responsibilities towards owners, the workers, the consumers, and the State . . . In creating these new relationships, the quasi-public corporation may fairly be said to work a revolution.”212

A competing conception of the corporation in society holds that it is not simply an artificial entity created by state incorporation statutory requirements with quasi-public functions but rather is a natural aggregation of private individuals free to assemble for a common purpose. Conceptualizing the corporation as an aggregation of private individuals implies that the state has less business interfering in business activities.

These competing conceptions of the corporate form have consequences. There are normative implications that a particular conception can have on law, policy, and practice; the relationship between theory and practice is an interactive one. For example, a given conception can be used to justify the expansion or limitation of the obligations that a corporation owes a particular interested or affected constituency. Accordingly, the distinctions drawn between whether a corporation is an artificial creation of law or a natural result of private contractual prerogatives present different challenges for protecting human rights where private commercial actors are involved in abuses.

While there are competing theories of corporate purpose, the concept of shareholder primacy commands significant influence in law and policy. Judicial decisions in the United States have recognized the importance of protecting the investing public against abuses by corporate management such as fraud or self-dealing.213 For example, in a case often cited as the foundation for shareholder primacy, Dodge v. Ford, minority shareholders of the Ford Motor company, the Dodge brothers, challenged Henry Ford’s failure to distribute surplus profits.214 Ford defended, unsuccessfully, that the retained earnings were to be used to finance the company’s expansion and to benefit consumers by reducing the cost of cars. Ford claimed that he planned “to employ still more men, to reap the benefits of this industrial system to the greatest possible number, to help them build up their lives and their homes.”215

Finding against Ford and citing no precedent, the Michigan Supreme Court, in dicta, maintained that corporate management’s first priority is to the owners of the corporations:

(p.51)

A business corporation is organized primarily for the profit of the stockholders, and the discretion of the directors is to be exercised in the choice of means to attain that end, and does not extend to the reduction of profits or the non-distribution of profits among stockholders in order to benefit the public, making the profits of the stock holders incidental thereto.216

Commentators have expressed concern that this singular focus on short-term profit maximization to promote the interests of owners sets incentives that may prove counterproductive in the long run, placing human rights and the environment at risk. For example, Professor David Millon has argued that shareholder supremacy leads to “management myopia” while Professor Lynn Stout has argued against seeing shareholders as a monolithic group interested only in profit maximization.217 Both advance the view that shareholders may see a wider range of matters as material.

The concentration of capital and power the corporate form of business organization currently embodies was created by law and remains protected by law. The corporation is recognized as a legal person and enjoys many of the rights of a human person, with few responsibilities beyond profit maximization. Designed to limit liability and increase efficiency, the conventional corporate form of business organization provides little incentive for responsible conduct or avoiding risks to human rights in the absence of a market for ethical business policies and responsible business practices. Where profits are by design the only focal point in a corporation’s field of vision, business leaders may lose sight of the adverse social or environmental impacts that particular policies and practices may cause.

B. Corporate Social Responsibility

Corporate law, as conventionally conceived, does not mandate that business be conducted in a manner that protects, promotes, or respects human rights. Given the strong emphasis in corporate law on protecting and promoting the interests of shareholders—presumed to be profit maximization—protecting the environment and promoting the human rights of others has not traditionally been a top business priority. Corporate and securities laws do provide some protections for shareholders and detail the duties businesses owe to owners,218 however pro-social (p.52) conduct considering interests beyond those of shareholders has been relegated to the realm of the voluntary assumption of responsibilities that are not legal requirements. The extralegal effort to do good, to go more than the minimum the law requires, is frequently referred to as “corporate social responsibility” (CSR).219

There are many and varied definitions and conceptualizations of CSR, from “corporate social responsiveness,”220 or “corporate social performance,”221 or “sustainability” to “creating shared value.”222 At its most basic, the concept of CSR captures the idea that the business community should be concerned about society even if the law, domestic or international, does not explicitly mandate or require any action. CSR is voluntary in that it is not legally mandated. Instead, “social responsibility begins where the law ends.”223 The idea that the businesses community owes some manner of obligation to the general public is a long-standing one and has continued to evolve since Berle’s 1934 observation about the quasi-public nature of the modern corporation.224

Professor Archie Carroll’s historical survey of the evolution of CSR concepts and definitions reveals a dynamic academic discourse.225 Early expressions of CSR in the 1950s and 1960s appealed to individual integrity of the ethical businessman. Conceptions of responsible corporate conduct in American academic literature produced by business scholars in the 1950s that invited business leaders to recognize their broader responsibilities to society were closely associated with Cold War politics.226 These early articulations of the importance of corporate citizenship were intended to align business interests with building military defense (p.53) capabilities and expanding free-market capitalism in order to promote patriotism, which would protect against the perceived dangers of Soviet communism.227

In the 1970s and 1980s, attention shifted away from the individual ethics of the businessman toward examining business as an institution in the context of society more generally. Scholars focused on understanding what benefits business enterprises derived from and delivered to their communities.228 Business literature emphasized that a responsible business enterprise must balance a “multiplicity of interests” such that, “instead of striving only for larger profits for its stockholders, a responsible enterprise also takes into account employees, suppliers, dealers, local communities and the nation.”229 Scholars in the years to follow called on business enterprises to commit to taking an active role in solving social problems.230 Current concepts of stakeholder engagement and stakeholder capitalism echo these earlier insights.

In the 1990s, the late Kofi Annan, former UN Secretary General and Nobel Laureate, recognized the need to address the adverse effects of global business and to generate better corporate citizens. He introduced the UN Global Compact, paving the way for progress on business ethics and corporate social responsibility at the international level.

In 2011, Michael E. Porter and Mark R. Kramer published the popular article, “Creating Shared Value.”231 They argued for a reinvention of capitalism where, “the purpose of the corporation must be creating shared value.” Only very recently has the businesses community begun to explicitly incorporate human rights considerations into CSR initiatives and reports. Academic business literature on CSR only rarely addresses international human rights; nevertheless, an understanding of the evolution of CSR provides insight into potential avenues for advancing the incorporation of rights into business policies and performance.

To be sure, CSR has skeptics. For example, Nobel Laureate Economist Milton Friedman saw CSR as suspect at best and as a dangerous distraction at worst. He argued, “few trends could so thoroughly undermine the very foundations of our free society as the acceptance by corporate officials of a social responsibility other than to make as much money for their stockholders as possible.”232

(p.54) Numerous critiques have been leveled against corporate social responsibility. Some of the more salient critiques question whether CSR efforts are compromising the central purpose of the corporate form. Under this view, the primary responsibility of the corporate form remains profit maximization. Some CSR critics maintain that a free market system can be trusted to solve certain social problems, and where that is not the case, it is the role of government, not business enterprises, to address and redress societal ills.

Nevertheless, present trends point toward more importance being placed by consumers and investors on the social and environmental performance of business. Indeed, economic imperatives could come to necessitate responsible conduct, beyond regulatory requirements, to reach certain market segments. The creation of “benefit corporations,” a relatively new form of business organization available in certain states, responds to new demands from a segment of the investing public interested in the social and environmental performance of a business.

B Lab, a nonprofit organization dedicated to using the power of business to solve social and environmental problems,233 has been the driving force behind a movement to change business as usual for the better.234 Since 2006, B Lab has been working to build a community of Certified B-Corporations (B-Corps) to accelerate the growth of impact investing and to encourage states to adopt benefit-corporation legislation.235 In an open letter to business leaders, B Lab explains: “Until recently, corporate law has not recognized the legitimacy of any corporate purpose other than maximizing profits. That old conception of the role of business in society is at best limiting, and at worst destructive.”236 Indeed, B Lab aims to bring about a “B Economy,” in which “businesses compete to be best for the world, the people living in it, and the natural environment.”237

B Lab offers model statutory legislation that states can emulate when drafting their own benefit corporation legislation. The B Lab model statute provides that the purpose of a business must be to create a general public benefit, defined as “a material positive impact on society and the environment, taken as a whole.” Specifically, beyond financial reporting, the model statute provides that (p.55) businesses must publicly and annually report an assessment of overall impact on all stakeholders against a third-party standard.

Benefit corporation legislation sets forth specific requirements related to accountability, corporate purpose, and transparency.238 The requirements for benefit corporations are markedly different than for traditional corporate structure in purpose, fiduciary obligations, reporting, and oversight. The fiduciary duties differ because benefit corporations are required to specify that the fiduciaries must consider the impact of their decision on nonshareholder constituencies, such as the local and global environment, society, employees of the corporation, subsidiaries and suppliers, customers, and communities as beneficiaries of the general or specifically stated purpose of the corporation.239 To that end, the directors’ fiduciary obligations for a benefit corporation are more expansive than a traditional corporate formation, where duties are first and foremost owed to shareholders—with a focus to maximize financial gain. Directors of benefit corps have more flexibility to pursue public good, since they are protected from liability on claims that they insufficiently produced public benefits or inadequately pursued profits for shareholders.240 Benefit corporations could advance corporate accountability and better align business practices with protection for human rights in that a management does not need to be as myopic and focused primarily on financial returns, rather leaders in benefit corporations are free to take a broader perspective of corporate purpose.

IV. Corporate Accountability for Human Rights Violations

While the business community speaks in terms of “corporate social responsibility,” the human rights movement is calling for corporate accountability and liability when corporations are complicit in rights violations.241 The fact that several Alien Tort Statute cases were filed against leading global firms provides evidence that expectations for responsible business conduct goes beyond the narrow legal obligation to maximize shareholder profits. Where the price of (p.56) profit is human suffering that discounts human dignity, businesses are increasingly incurring the costs of public condemnation and litigation.

A. Alien Tort Statute Litigation

Counsel for victims of human rights violations have sued major multinational corporations in United States courts and the courts of other countries seeking redress.242 The Alien Tort Statute (ATS), a 1789 federal law enacted in the first session of the US Congress, allows foreign nationals to seek relief in federal courts when the law of nations has been violated.243 The ATS provides, in pertinent part, that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”244

The principle that private individuals could be held liable for violations of international law—the law of nations—made litigation against private corporations possible.245 In 1997, Doe v. Unocal Corp.246 was the first suit filed in the United States arguing that corporations should be held liable for being complicit in human rights abuses. Villagers were reportedly murdered, tortured, raped, and forced into labor by members of the Burmese military hired to provide Unocal’s gas pipeline project with security. Villagers sued the company, alleging it knew of and enabled the military’s abuses. After nearly a decade of litigation, Unocal settled the suit in 2005.

In 2013, in Kiobel v. Royal Dutch Petroleum, the US Supreme Court justices unanimously declined to extend jurisdiction over claims that involved a foreign plaintiff suing a foreign defendant for acts in a foreign country. Ester Kiobel sued on behalf of her late husband, an environmental activist and ethnic Ogoni who was killed after the company contracted with the Nigerian government for the military to provide security. The military put down the protests by villagers opposed to the company’s operations in the region. Kiobel and others complained (p.57) that “military and police forces attacked Ogoni villages, beating, raping, killing and arresting residents and destroying or looting property.”247 Kiobel argued that the atrocities suffered by residents of the oil-rich region were aided and abetted by business enterprises providing support to the Nigerian government’s suppression efforts, including: “food, transportation, and compensation, as well as by allowing the Nigerian military to use respondents’ property as a staging ground for attacks.”248

Rather than reaching the merits of the claims, the Court found that an extension of jurisdiction over claims that occurred overseas would run counter to a presumption against extraterritorial application of US laws. The Court also explained: “On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”249

Concurring in the judgment on other grounds, Justice Stephen G. Breyer looked to foreign relations legal principles and practices to conclude that the ATS grants jurisdiction where: “(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.”250 He reasoned that the United States had a distinct interest in not becoming a safe harbor for those who would violate international law.251 The practical effect of this point is to allow some space for prosecuting violations of international law.

Nevertheless, with its 2018 decision in Jesner v. Arab Bank, the Supreme Court handed would-be violators of international human rights a victory by categorically excluding all claims against foreign corporations for violations of the “laws of nations”—no matter the scale or magnitude of the abuse. In Jesner v. Arab Bank, the Court rejected claims that victims of terrorist attacks brought against a bank alleged to maintain accounts used by known terrorists to finance attacks and to support the families of suicide bombers. The same Court that continues to recognize the rights of corporations concluded that it did not have authority to impose liability on “artificial entities like corporations.” Actual persons can be held liable for violating the laws of nations, but artificial persons incorporated overseas now cannot be. Pointing to foreign policy issues as the institutional responsibility of (p.58) the political branches of government, the Court explained it would be “inappropriate for courts to extend ATS liability to foreign corporations absent further action from Congress.”252

Dissenting, Justice Sonia Sotomayer observed: “in categorically barring all suits against foreign corporations under the ATS, the Court ensures that foreign corporations—entities capable of wrongdoing under our domestic law—remain immune from liability for human rights abuses, however egregious they may be.”253 Moreover, “immunizing corporations that violate human rights from liability under the ATS undermines the system of accountability for law-of-nations violations.”254

These decisions leave little room for victims of rights violations connected to or caused by corporations to seek and secure remedy through the US federal court system. Litigation to vindicate the rights of victims had limitations even before access to US courts were so sharply curtailed by the Kiobel and Jesner decisions.

B. The Limits of Litigation

To date, no ATS cases have resulted in court rulings that have found for corporate liability in the United States.255 Some cases have been settled, but the terms of settlement are rarely disclosed to the public.256 The plaintiffs in most ATS cases are poor, Indigenous, and socially excluded people who are able to bring claims only because of the assistance of cross-border coalitions of lawyers.257

Often corporations subjected to ATS suits were able to persuade US courts to dismiss claims on procedural grounds pursuant to the doctrine of forum non conviens. Some companies settled suits out of court for undisclosed amounts without an admission of liability. The record of successful resolution of these claims has been mixed. The wisdom of the strategy of seeking redress in courts has been questioned because suits are expensive and can span several years.

(p.59) There are judicial decisions in other jurisdictions addressing the obligations and potential liability of commercial actors with respect to human rights. Courts in the United Kingdom, the Netherlands, and South Africa have also been asked to address the obligations and potential liability of commercial actors with respect to human rights and torts. Citizens of the Ivory Coast exposed to toxic chemical waste linked to a Dutch petroleum trading company and its subsidiary in the United Kingdom brought legal proceedings against the company in the United Kingdom.258 A successful criminal prosecution of the company conducted in the Netherlands resulted in fines.259 Claims against AngloGold Ashanti Ltd., a mining company, were brought by mineworkers in the Constitutional Court of South Africa and resulted in a damages award.260

These ATS cases, and the actions pending in other jurisdictions, contribute to our understanding of what responsible business conduct is with respect to human rights, and where failure to act consistently with respect for human rights could result in liability. These cases help shape our understanding and help frame public discourse to bring attention to the plight of victims of rights violations. They teach something of how thinking is evolving about what corporations owe to different stakeholders in society. They also could generate international law on the level of care corporations must take when human rights are at risk.

Nevertheless, given the narrowing of access to the courts in some key jurisdictions—states that are home to many global corporations—it is important to identify other avenues for addressing human rights abuses in which businesses are implicated. Litigation alone will not be sufficient to solve the problems victims of rights violations involving corporate actors confront. Access to remedy remains a problem that requires urgent resolution. In the meantime, a premium should be put on prevention. This will mean finding ways to ensure businesses incorporate rights.

V. Incorporating Rights

This chapter has explained how international human rights law is inadequate for addressing human rights abuses where corporate actors are implicated. It offered (p.60) an overview of the conceptual foundations of international law that render global business enterprises difficult to regulate and hold to account for alleged abuses, and it explained how domestic US corporate law ignores human rights considerations and contributes to governance gaps.

This chapter has also shown that some features of the corporate form can function to compromise respect for human rights. From a human rights perspective, an institutional design that creates distance by separating ownership from management and that limits liability can invite irresponsibility.

Limited liability or sharing the costs of bearing risks was at one point in time required for innovation exploration and exploitation. Indeed, the early charter companies of the imperial project of colonizing regions outside of the European continent were joint stock shares designed to spread the risk of exploration. Shareholders exempt from personal liability can spur innovation but can also invite irresponsibility. The development of benefit corporations signals an increased appetite for better alternatives to business as usual—as are the efforts of shareholder advocates interested in environmental, social, and governance issues.

Too often, “management myopia” continues to contribute to a failure to focus on impacts adverse to rights. As interest in human rights grows along with the costs of failure to respect rights, this can change. Unless and until rights abuses adversely impact the business bottom line and come to be a basis for buy/sell decisions by shareholders, management may continue to miss the adverse impacts of corporate conduct, particularly when human rights risks are not incorporated into corporate decision-making processes.

More than a convenient legal instrument to regulate capital formation, the corporation must be understood as a social institution that can adequately address human rights risks in the global economy. The corporation is an institution that facilitates the accumulation of capital by bringing together people in pursuit of a common purpose, more often than not for the purpose of generating a profit.261 Therefore, the corporation as a social institution is a means of organizing human economic activity and even belief systems.262

Business enterprises are important societal actors. The corporation must be understood to be an “organ of society,” as the Universal Declaration of Human Rights provides in its preamble. “Every individual and every organ of society” should strive to promote respect for rights and freedoms and to secure the universal and effective recognition of human rights, both nationally and internationally.263 In my view, the most human rights–respecting conception of the (p.61) corporate form would be citizens in community. A wide array of actors, beyond states, must be recognized as possessing the potential to participate in the creation of policies to regulate business practices with respect to human rights.

In the next chapter, I will trace the trajectory of international policy initiatives that have advanced in an effort to regulate the social impacts of global corporate capitalism and to address the types of governance gap that gives risks to human rights risks. (p.62)

Notes:

(1) Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443, 443–545 (2001).

(2) Philip C. Jessup, Subjects of a Modern Law of Nations, 45 MICH. L. REV. 383, 383 (1947).

(3) Restatement, (Third) of Foreign Relations Law of the United States, 206 (1987).

(4) Id.

(5) Jose E. Alvarez, Are Corporations “Subjects” of International Law?, 9 SANTA CLARA J. INT’L L. 1, 3 (2011).

(6) Statute of the Int’l Court of Justice, art. 38, para. 1. Art. 38, June 26, 1945, 59 Stat. 1055 [hereinafter ICJ Statute].

(7) Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969); see also Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations.

(8) Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 6 (6th ed. 2003).

(9) John J. Kirton & Michael J. Trebilcock, Hard choices, SOFT LAW: VOLUNTARY STANDARDS IN GLOBAL TRADE, ENVIRONMENT AND SOCIAL GOVERNANCE 9 (2017).

(10) See BROWNLIE, supra note 8, at 6–29.

(11) Id. at 47–48.

(12) Lori E. Damrosch et al., INT’L LAW CASES AND MATERIALS 602–603 (4th ed. 2001) (citing Restatement (Third) §702).

(13) See Philip Alston, The “Not-a-Cat” Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?, in NON-STATE ACTORS AND HUMAN RIGHTS 3, 3–5 (Philip Alston ed., 2005).

(14) See generally Andrew Clapham, HUMAN RIGHTS OBLIGATIONS OF NON-STATE ACTORS 195–247 (1995); Joseph E. Stiglitz, MAKING GLOBALIZATION WORK 188–210 (2006); Daniel J.H. Greenwood, The Semi-Sovereign Corporation, in LEGAL STUDIES RESEARCH PAPER SERIES (Research Paper No. 05-04, 2005). Cf. P.T. MUCHLINSKI, MULTINATIONAL ENTERPRISES AND THE LAW 3–56 (1995).

(15) Nick Robins, Loot: In Search of the East India Company, the World’s First Transnational Corporation, 14 ENV’T & URB. 79 (2002).

(16) Id. at 80–81.

(17) Nick Robins, THE CORPORATION THAT CHANGED THE WORLD: HOW THE EAST INDIA COMPANY SHAPED THE MODERN MULTINATIONAL 3–4 (2006).

(18) Robins, supra note 15, at 81.

(19) Id.

(20) Id. at 82.

(21) Adam Smith, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 343–44 (Edwin Cannan ed., 1977) (“No two characters seem more inconsistent than those of trader and sovereign. If the trading spirit of the English East India Company renders them very bad sovereigns, the spirit of sovereignty seems to have rendered them equally bad traders. While they were traders only, they managed their trade successfully. . . . Since they became sovereigns. . . . they have been obliged to beg the extraordinary assistance of government in order to avoid immediate bankruptcy.”).

(22) Janet McLean, The Transnational Corporation in History: Lessons for Today?, 79 IND. L.J. 363, 368 (2004).

(23) H.V. Bowen, THE BUSINESS OF EMPIRE: THE EAST INDIA COMPANY AND IMPERIAL BRITAIN, 1756–1833, at 3, 9–10 (2006).

(24) Robins, supra note 15, at 83.

(25) See THE REV. LEON SULLIVAN WEBSITE, The Global Sullivan Principles, http://muwww-new.marshall.edu/revleonsullivan/indexf.htm.

(26) Brian J.F. Clark, United States Labor Practices in South Africa: Will a Mandatory Fair Employment Code Succeed Where the Sullivan Principles Have Failed?, 7 FORDHAM INT’L L.J. 358, 361 (1984).

(27) Id.

(28) Id.

(29) Clark, supra note 26, at 358, 361.

(30) Id.

(31) See Rev. Sullivan, Statement of Principles 1–4 (July 6, 1978) (available from the offices of the American Committee on Africa, New York City).

(32) See THE REV. LEON SULLIVAN WEBSITE, supra note 25.

(33) S. Prakash Sethi & Oliver F. Williams, Creating and Implementing Global Codes of Conduct: An Assessment of the Sullivan Principles as a Role Model for Developing International Codes of Conduct—Lessons Learned and Unlearned, 105 BUS. & SOC’Y REV. 169, 169–170 (2000). Among the founding signatories were: Citicorp, Ford Motor Company, General Motors Corporation, IBM Corporation, International Harvester Company, Mobil Corporation, and Union Carbide Corporation. Id. at 170.

(34) Id. at 171.

(35) See The Sullivan Principles, supra note 25.

(36) Sethi & Williams, supra note 33.

(37) See generally, NON-STATE ACTORS AND HUMAN RIGHTS (Philip Alston ed., 2005) and HUMAN RIGHTS OBLIGATIONS OF NON-STATE ACTORS (Andrew Clapham ed., 2006); see also, Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443, 443–545 (2001).

(38) See generally, David Kinley, CIVILISING GLOBALIZATION: HUMAN RIGHTS AND THE GLOBAL ECONOMY (2009).

(39) 69 of the Richest 100 Entities on the Planet Are Corporations, not Governments, Figures Show, GLOBAL JUSTICE NOW (Oct. 17, 2018), https://www.globaljustice.org.uk/news/2018/oct/17/69-richest-100-entities-planet-are-corporations-not-governments-figures-show.

(40) Philip C. Jessup, The Subjects of a Modern Law of Nations, 45 MICH. L. REV. 383, 387 (1947).

(41) Peter Muchlinski, Corporate Social Responsibility and International Law: The Case of Human Rights and Multinational Enterprises, in THE NEW CORPORATE ACCOUNTABILITY 440 (2007).

(42) See, e.g., Elizabeth Borgwardt, A NEW DEAL FOR THE WORLD: AMERICA’S VISION FOR HUMAN RIGHTS 196 (2005); Philip Alston & Ryan Goodman, INTERNATIONAL HUMAN RIGHTS, THE SUCCESSOR TO INTERNATIONAL HUMAN RIGHTS IN CONTEXT 10 (2012).

(43) U.N. Charter, pmbl., art. 1; Universal Declaration of Human Rights, G.A. Res. 217 (III), at art. 23, para. 3 (Dec. 10 1948) U.N. Doc. A/810 [hereinafter UDHR]; See, e.g., Makau Mutua, Savages, Victims and Saviors: The Metaphor of Human Rights, 42 HARV. INT’L L.J. 201–245 (2001) (challenging the notion of universality of human rights as a cover for the continued expansion of Western values and interests by several countries that are now UN members, which were colonial territories at the time of the Charter and Declaration).

(44) U.N. Charter, pmbl.

(45) G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

(46) See Dennis J. Driscoll, The Development of Human Rights in International Law, in THE HUM. RTS. READER, 41, 45 (rev. ed., 1989) (explaining the nonbinding nature of the Universal Declaration of Human Rights as emphasized by states prior to its adoption).

(47) See, e.g., Int’l Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966, 999 U.N.T.S. 171; Int’l Covenant on Economic, Social and Cultural Rights (ICESCR), Dec. 16, 1966, 993 U.N.T.S. 3; International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195; Convention on the Elimination of all Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13; Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85; G.A. Res. 61/106, Convention on the Rights of Persons with Disabilities (Jan. 24, 2007); G.A. Res. 45/158, Int’l Convention on the Rts. of Migrant Workers (Dec. 18, 1990); G.A. Res. 61/177, Int’l Convention for the Protection of All Persons from Enforced Disappearance (Jan. 12, 2007).

(48) See, supra note 43 Universal Declaration of Human Rights, pmbl.

(49) Id.

(50) See ICJ Statute, supra note 6 (listing the accepted sources of international law as being treaties, custom, general principles, and other sources of international law).

(51) Vienna Declaration and Program of Action, U.N. Doc. A/CONF.157/23 (July 12, 1993).

(52) Int’l Lab. Org. (ILO), Freedom of Association and Protection of the Right to Organise Convention, No. 87 (1948); ILO, Right to Organise and Collective Bargaining Convention, No. 98 (July 4, 1950); ILO, Forced Labour Convention, No. 29 (May 1, 1932); ILO, Abolition of Forced Labour Convention, No. 105 (June 25, 1957); ILO, Minimum Age Convention, No. 138 (June 26, 1973); ILO, Worst Forms of Child Labour Convention, No. 182 (June 17, 1999); ILO, Equal Remuneration Convention, No. 100 (June 29, 1951); ILO, Discrimination (Employment and Occupation) Convention, No. 111 (June 25, 1958).

(53) ILO, Declaration on Fundamental Principles and Rights at Work, 86th Sess., Geneva (June 1998); see also Hum. Rts. Watch, On the Margins of Profit, Vol. 20, No. 3(G), 32–38 (2008).

(54) G.A. Res. 251, U.N. Doc. A/RES/60/251 (Apr. 3, 2006).

(55) The Council meets in Geneva ten weeks a year. The elected member states serving on the Council serve for a three-year period and cannot serve for more than two consecutive terms.

(56) U.N. OFFICE OF THE HIGH COMMISSIONER FOR HUM. Rts., Universal Periodic Review, http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx (last visited Jan. 15, 2016).

(57) U.N. OFFICE OF THE HIGH COMMISSIONER FOR HUM. Rts., How We Do It, http://www.ohchr.org/EN/AboutUs/Pages/HowWeDoIt.aspx (last visited Jan. 15, 2016).

(58) U.N. OFFICE OF THE HIGH COMMISSIONER FOR HUM. Rts., What We Do, http://www.ohchr.org/EN/AboutUs/Pages/WhatWeDo.aspx (last visited Jan. 15, 2016).

(59) See, e.g., ICCPR, supra note 47, at art. 40, ICESCR, supra note 47, at art. 40.

(60) Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, HRC Doc. A/HRC/17/31 (Mar. 21, 2011).

(61) U.N. OFFICE OF THE HIGH COMMISSIONER FOR HUM. Rts., Special Rapporteur on human rights and the environment, https://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx (last visited Feb. 13, 2020).

(62) See, e.g., Jessica Woodroffe, Regulating Multinational Corporations in a World of Nation States, in HUMAN RIGHTS STANDARDS AND THE RESPONSIBILITY OF TRANSNATIONAL CORPORATIONS (Michael K. Addo ed., 1999).

(63) See, e.g., Thom Hartmann, UNEQUAL PROTECTION: THE RISE OF CORPORATE DOMINANCE AND THE THEFT OF HUMAN RIGHTS (2002).

(64) Henry J. Steiner, Philip Alston, & Ryan Goodman, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 1388 (3d ed. 2008).

(65) Id.

(66) Id.

(67) Id.; see KINLEY, supra note 38, at 145–203.

(68) Lisa Misol & Smita Narula, On the Margins of Profit Rights at Risk in the Global Economy, 20 HUMAN RIGHTS WATCH AND THE CENTER FOR HUMAN RIGHTS AND GLOBAL JUSTICE 11 (2008).

(69) See id; Human Rights Watch, ON THE MARGINS OF PROFIT: RIGHTS AT RISK IN THE GLOBAL ECONOMY 20 (2008); Edwin Black, IBM AND THE HOLOCAUST: THE STRATEGIC ALLIANCE BETWEEN NAZI GERMANY AND AMERICA’S MOST POWERFUL CORPORATION (Crown Publishers, 2001).

(71) Michael J. Bazyler, Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. RICH. L. REV. 1, 38 (2000).

(72) Id.

(73) Id. (quoting BLACK, supra note 69).

(74) Keith William Diener, The Restricted Nature of the Profit Motive: Perspectives from Law, Business, and Economics, 30 NOTRE DAME J.L. ETHICS & PUB. POL’Y 225, 226–227 (2016).

(75) BLACK, supra note 69, at 54–56.

(76) Dobbs, supra note 70 (citing BLACK, supra note 69).

(77) Nuremberg Trials, HISTORY, https://www.history.com/topics/world-war-ii/nuremberg-trials (last updated Oct. 1, 2018).

(78) Alberto L. Zuppi, Slave Labor in Nuremberg’s I.G. Farben Case: The Lonely Voice of Paul M. Hebert, 66 LA. L. REV. 495, 496 (2006).

(79) Id. at 508.

(80) Id. at 502.

(81) Id. at 496.

(82) U.S. v. Carl Krauch et al., Vol. 7-8 (1947), known as the “I.G. Farben Case.”

(83) Zuppi, supra note 78, at 496–497.

(84) In re Nazi Era Cases Against German Defendants Litig., 334 F. Supp. 2d 690, 695 (D.N.J. 2004).

(85) Zuppi, supra note 78, at 496.

(86) In re African-American Slave Descendants Litig., 375 F. Supp. 2d 721, 736–737 (N.D. Ill. 2005).

(87) S. African Apartheid Litig. v. Daimler AG, 617 F. Supp. 2d 228, 241–243 (S.D.N.Y. 2009).

(88) See, e.g., UDHR, supra note 43.

(89) See, e.g., Yaniv Roznai, The Insecurity of Human Security, 32 WIS. INT’L L.J. 95, 95–96 (2014); Irene Khan, A Human Rights Agenda for Global Security, in HUMAN SECURITY FOR ALL: A TRIBUTE TO SERGIO VIEIRA DE MELLO 17 (Kevin M. Cahill ed., 2004).

(90) The Human Rights Committee, the body that monitors the ICCPR has given the term “security of person” a meaning independent from the “liberty and security” provision to encompass personal security and bodily integrity beyond situations of detention.

(91) See, e.g., ICCPR, supra note 47, at arts. 6, 7.

(92) G.A. Res. 2106 (XX), International Convention on the Elimination of All Forms of Racial Discrimination, art. 5 (b), U.N.T.S. vol. 66, 195 (Dec. 21, 1965).

(93) Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002).

(94) William v. AES Corp., 28 F. Supp. 3d 553 (E.D. Va. 2014).

(95) Mujica v. AirScan Inc., 771 F.3d 580 (9th Cir. 2014); Giraldo v. Drummond Co., 808 F. Supp. 2d 247 (D.D.C. 2011), aff’d, 493 F. App’x 106 (D.C. Cir. 2012); Baloco v. Drummond Co., Inc., 767 F.3d 1229 (11th Cir. 2014); Romero v. Drummond Co., Inc., 552 F.3d 1303 (11th Cir. 2008).

(96) Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004).

(97) Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999); Alomang v. Freeport-McMoran, Inc., 718 So. 2d 971 (La. App. 4th Cir. 1998).

(98) Abdullahi, et al. v. Pfizer, Inc., 562 F.3d 163); Bowoto v. Chevron Corp., 621 F.3d 1116 (9th Cir. 2010).

(99) Flores v. Southern Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003); Jota v. Texaco Inc., 157 F.3d 153 (2d Cir. 1998).

(100) Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108, 113–114, 133 S. Ct. 1659, 1662-63 (2013).

(101) Flores v. S. Peru Copper Corp., 414 F.3d 233, 236–237 (2d Cir. 2003).

(102) Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 163–164 (5th Cir. 1999).

(103) Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75, 83 (D.D.C. 2014).

(104) See, e.g., Jonathan Stemple, Indonesia Torture Case vs Exxon Mobil Revived, REUTERS (Jul7 8, 2011 5:01 PM), http://www.reuters.com/article/us-exxonmobil-indonesia-idUSTRE7676I120110708; see also, John Doe, Village A, Aceh, Indonesia, et al., Appellees v. Exxon Mobil Corporation, et al., Appellants, 473 F.3d 345 (D.C. Cir. 2007).

(105) ICCPR, supra note 47, at art. 2 & art. 19.

(106) See e.g., Joseph Menn, Lawsuit Links Cisco with China Crackdown, FINANCIAL TIMES, May 23, 2011 https://www.ft.com/content/ed449f78-8567-11e0-ae32-00144feabdc0 (reporting on suit alleging Cisco designed products to help the Chinese government identify and persecute members of the spiritual group, Falun Gong).

(107) Second Amended Complaint, Wang Xiaoning v. Yahoo! Inc., No. C07-02151 CW (N.D. Cal. July 30, 2007).

(108) In re Facebook S’holder Derivative Privacy Litig., No. 18-cv-01792-HSG, 2019 U.S. Dist. LEXIS 48334, at *8 (N.D. Cal. Mar. 22, 2019).

(110) Id.; Minority Rights Group International, Peoples Under Threat 2019: The Role of Social Media in Exacerbating Violence, MINORITYRIGHTS.ORG (June 3, 2019), https://minorityrights.org/2019/06/03/peoples-under-threat-2019-the-role-of-social-media-in-exacerbating-violence/.

(111) HUMAN RIGHTS COUNCIL, ADVANCE EDITED VERSION OF REPORT OF THE INDEPENDENT INTERNATIONAL FACT-FINDING MISSION ON MYANMAR 5 (2018), available at https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_64.pdf; see also Global Conflict Tracker: Rohingya Crisis in Myanmar, CFR.ORG, https://www.cfr.org/interactive/global-conflict-tracker/conflict/rohingya-crisis-myanmar (last visited Oct. 13, 2019).

(113) Id.

(114) HUMAN RIGHTS COUNCIL, supra note 111, at 14.

(115) See, e.g., The Rohingya Crisis, AMNESTY INTERNATIONAL, https://www.amnestyusa.org/rohingya/ (last visited Oct. 14, 2019); Rohingya Refugee Crisis a “Human Rights Nightmare,” UN Chief Tells Security Council, UN NEWS (Sept. 28, 2017), https://news.un.org/en/story/2017/09/567402-rohingya-refugee-crisis-human-rights-nightmare-un-chief-tells-security-council; Live Updates: Rohingya Crisis, HRW.ORG, https://www.hrw.org/blog-feed/rohingya-crisis (last visited Oct. 14, 2019); Growing Violence: Myanmar, RESCUE.ORG, https://www.rescue.org/country/myanmar (last visited Oct. 14, 2019).

(116) See, e.g., Julia Carrie Wong, “Overreacting to Failure”: Facebook’s New Myanmar Strategy Baffles Local Activists, THE GUARDIAN (Feb. 7, 2019), https://www.theguardian.com/technology/2019/feb/07/facebook-myanmar-genocide-violence-hate-speech; Steve Stecklow, Why Facebook Is Losing the War on Hate Speech in Myanmar, REUTERS (Aug. 15, 2018, 3:00 PM GMT), https://www.reuters.com/investigates/special-report/myanmar-facebook-hate/; Megha Rajagopalan, How Facebook Failed the Rohingya in Myanmar, BUZZFEED NEWS (Aug. 27, 2018, 6:46 PM ET), https://www.buzzfeednews.com/article/meghara/facebook-myanmar-rohingya-genocide.

(117) Mozur, supra note 112.

(118) Four More Myanmar Ethnic Rebel Groups Banned From Facebook over Hate Speech, SOUTH CHINA MORNING POST (Feb. 8, 2019, 12:13 AM), https://www.scmp.com/news/asia/southeast-asia/article/2185345/four-more-myanmar-ethnic-rebel-groups-banned-facebook-over.

(119) Alex Warofka, An Independent Assessment of the Human Rights Impact of Facebook in Myanmar, FACEBOOK (Nov. 5, 2018), https://newsroom.fb.com/news/2018/11/myanmar-hria/; BSR, HUMAN RIGHTS IMPACT ASSESSMENT: FACEBOOK IN MYANMAR 1, 5–7 (2018), available at https://fbnewsroomus.files.wordpress.com/2018/11/bsr-facebook-myanmar-hria_final.pdf; see also Jenny Domino, Gambia v. Facebook: What the Discovery Request Reveals About Facebook’s Content Moderation, JUST SECURITY (July 6, 2020), https://www.justsecurity.org/71157/gambia-v-facebook-what-the-discovery-request-reveals-about-facebooks-content-moderation/.

(120) See generally, ICESCR supra note 47.

(121) ICESCR, supra note 47, at art. 12.

(122) Bob Herman, Oklahoma Says Johnson & Johnson Was the “Kingpin” behind the Opioid Crisis Axios (2019), https://www.axios.com/johnson-johnson-oklahoma-opioid-crisis-kingpin-5f2a252d-a1b3-4fbd-9e95-dddf415e7cab.html (last visited Mar. 25, 2019); Kentucky sues Johnson & Johnson over opioid epidemic, NBCNEWS.COM, https://www.nbcnews.com/storyline/americas-heroin-epidemic/kentucky-sues-johnson-johnson-subsidiaries-over-opioid-epidemic-n867121 (last visited Mar 25, 2019).

(124) Nicole Perlroth, Pfizer’s Nigerian Nightmare, FORBES (Nov. 20, 2008 5:00 PM), https://www.forbes.com/forbes/2008/1208/066.html#6ac659e123a7.

(125) Jacqui Wise, Pfizer Accused of Testing New Drug Without Ethical Approval, NCBI.NLM.NIH.ORG (Jan. 27, 2001), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1119465/.

(126) Jeanne Lenzer, Secret Report Surfaces Showing That Pfizer Was at Fault in Nigerian Drug Tests, NCBI.NLM.NIH.GOV (May 27, 2006), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1471980/.

(127) Joe Stephens, Where Profits and Lives Hang in Balance, WASHINGTON POST (Dec. 17, 2000), https://www.washingtonpost.com/archive/politics/2000/12/17/where-profits-and-lives-hang-in-balance/90b0c003-99ed-4fed-bb22-4944c1a98443/; Donald G. McNeil Jr., Nigerians Receive First Payments For Children Who Died in 1996 Meningitis Drug Trial, N.Y. TIMES (Aug. 11, 2011), https://www.nytimes.com/2011/08/12/world/africa/12nigeria.html.

(128) Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2007).

(129) Id.

(130) Id.

(131) Id.

(132) See United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, Annex, U.N. Doc. A/RES/61/295 (Sept. 13, 2007) [hereinafter UNDRIP]; see generally S. James Anaya, The Human Rights of Indigenous Peoples: United Nations Developments, 35 U. HAW. L. REV. 983 (2013).

(133) UNDRIP, supra note 132.

(134) Int’l Lab. Org. (ILO) No. 169, Indigenous and Tribal Peoples in Independent Countries (1989).

(135) Id.; UNDRIP, supra note 132. For an explanation of the FPIC concept as relevant to business operations, see Amy K. Lehr & Gare Smith, Implementing a Corporate Free, Prior, and Informed Consent Policy: Benefits and Challenges, FOLEY HOAG LLP (May 2010); Amy K. Lehr & Gare Smith, Business for Social Responsibility, Engaging with Free, Prior and Informed Consent, FOLEY HOAG LLP (Sept. 2012).

(136) See César Rodriguez-Garavito, Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields, 18 IND. J. GLOBAL LEGAL STUD. 1 (2010); Cathal Doyle & Jérémie Gilbert, Indigenous Peoples and Globalization: From “Development Aggression” to “Self-Determined Development,” 7 EURO. Y.B. MINORITY ISS. 199 (2008).

(137) See Report of the Special Rapporteur on the Rights of Indigenous Peoples, Extractive Industries and Indigenous Peoples, UN. Doc. A/HRC/24/41 (July 1, 2013).

(138) Oyu Tolgio Project, RIO TINTO MONGOLIA, http://www.riotintomongolia.com/ENG/index_oyu_tolgoi.asp (last visited Nov. 28, 2014); see also Rio Tinto Accused of Environmental and Human Rights Breaches, THE GUARDIAN (Apr. 18, 2013) http://www.theguardian.com/business/2013/apr/18/rio-tinto-environmental-human-rights-breaches (last visited Nov. 20, 2020); Joint Press Release, Mining and Communities, Mongolian Herders Complain Against Rio Tito Over Oyu Tolgoi Mines, ESCR-NET, http://www.escr-net.org/node/365339 (last visited Nov. 20, 2020).

(139) THE WORLD BANK, MONGOLIA GROUNDWATER ASSESSMENT IN THE SOUTHERN GOBI REGION, APRIL 2010.

(140) Id.

(141) Int’l Labor Org. (ILO), Declaration on Fundamental Principles and Rights at Work, 86th Sess., Geneva (June 1998); see also Lisa Misol & Smita Narula, supra note 68, at No. 3(G), 32–38 (2008).

(142) ILO, Freedom of Association and Protection of the Right to Organise Convention, No. 87 (1948); ILO, Right to Organise and Collective Bargaining Convention, No. 98 (July 4, 1950); ILO, Forced Labour Convention, No. 29 (May 1, 1932); ILO, Abolition of Forced Labour Convention, No. 105 (June 25, 1957); ILO, Minimum Age Convention, No. 138 (June 26, 1973); ILO, Worst Forms of Child Labour Convention, No. 182 (June 17, 1999); ILO, Equal Remuneration Convention, No. 100 (June 29, 1951); ILO, Discrimination (Employment and Occupation) Convention, No. 111 (June 25, 1958).

(143) ILO, Freedom of Association and Protection of the Right to Organise Convention, No. 87 (1948); ILO, Right to Organise and Collective Bargaining Convention, No. 98 (July 4, 1950).

(144) ILO, Forced Labour Convention, No. 29 (May 1, 1932); ILO, Abolition of Forced Labour Convention, No. 105 (June 25, 1957).

(145) ILO, Minimum Age Convention, No. 138 (June 26, 1973); ILO, Worst Forms of Child Labour Convention, No. 182 (June 17, 1999).

(146) ILO, Equal Remuneration Convention, No. 100 (June 29, 1951); ILO, Discrimination (Employment and Occupation) Convention, No. 111 (June 25, 1958).

(147) ICCPR, supra note 47, at art. 22; ICESCR, supra note 47, at art. 8.

(148) ICCPR, supra note 47, at art. 8.

(149) ICESCR, supra note 47, at art. 10.

(150) ICESCR, supra note 47, at art. 7.

(151) In re Chiquita Brands Int’l, Inc. Alien Tort Statute & S’holder Derivative Litig., 792 F. Supp. 2d 1301 (S.D. Fla. 2011), on reconsideration in part sub nom. In re: Chiquita Brands Int’l, Inc., No. 07-60821-CIV-MARRA, 2012 WL 12539695 (S.D. Fla. Mar. 27, 2012), and rev’d sub nom. Cardona v. Chiquita Brands Int’l, Inc., 760 F.3d 1185 (11th Cir. 2014).

(152) Palacios v. The Coca-Cola Co., 757 F. Supp. 2d 347, 349 (S.D.N.Y. 2010), aff’d sub nom. Palacios v. Coca-Cola Co., 499 F. App’x 54 (2d Cir. 2012).

(153) Turedi v. Coca Cola Co., 460 F. Supp. 2d 507, 509 (S.D.N.Y. 2006) (plaintiffs alleging a violent attack on them by Turkish police during a labor dispute in Istanbul).

(154) Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345 (S.D. Fla. 2003).

(155) Id., at 1348.

(156) Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005).

(157) Aldana v. Fresh Del Monte Produce, Inc., No. 01-3399-CIV-MORE, 2007 U.S. Dist. LEXIS 77020, at *4-5 (S.D. Fla. Oct. 16, 2007).

(158) E.g., Peter Whoriskey & Rachel Siegel, Cocoa’s Child Laborers, WASHINGTON POST (June 5, 2019), https://www.washingtonpost.com/graphics/2019/business/hershey-nestle-mars-chocolate-child-labor-west-africa/.

(159) Child Labor in the Production of Cocoa, U.S. DEPT. OF LABOR, https://www.dol.gov/agencies/ilab/our-work/child-forced-labor-trafficking/child-labor-cocoa (last visited Oct. 15, 2019).

(160) Hershey Lawsuit (Re Child Labour in Cote d’Ivoire), BUSINESS-HUMANRIGHTS.ORG, https://www.business-humanrights.org/en/hershey-lawsuit-re-child-labour-in-côte-d’ivoire (last visited Oct. 15, 2019); see Dana v. Hershey Co., 180 F. Supp. 3d 652 (N.D. Cal. 2016); Tomasella v. Nestle USA, Inc., 364 F. Supp. 3d 26 (D. Mass. 2019).

(161) See Hodsdon v. Mars, Inc., 162 F. Supp. 3d 1016 (N.D. Cal. 2016) (granting Mars’ motion to dismiss); McCoy v. Nestle USA, Inc., 173 F. Supp. 3d 954 (N.D. Cal. 2016) (granting Nestle’s motion to dismiss).

(162) 180 F. Supp. 3d at 654–655.

(163) Hershey Lawsuit., supra note 160; see also Dana, 180 F. Supp. 3d at 664–665, 670–671.

(164) 364 F. Supp. 3d at 29.

(165) Id. at 34–36, 37.

(167) Id.

(168) Introducing Cocoa For Good, THEHERSHEYCOMPANY.COM, https://www.thehersheycompany.com/en_us/sustainability/shared-business/cocoa-for-good.html (last visited Oct. 15, 2019).

(169) Does Nestle Have Child Labour in Its Cocoa Supply Chain?, NESTLE.COM, https://www.nestle.com/ask-nestle/human-rights/answers/nestle-child-labour-supply-chains (last visited Oct. 15, 2019).

(171) Does Nestle Have Child Labour in its Cocoa Supply Chain?, supra note 169.

(172) Protecting Children and Workers, NESTLE.COM, https://www.nestle.com/csv/impact/respecting-human-rights/workers-livelihoods (last visited Oct. 15, 2019).

(173) See, e.g., EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991); Doe v. Nestle U.S.A., Inc., 766 F.3d 1013 (9th Cir. 2014), cert denied 136 S. Ct. 798 (2016); Chowdhury v. Worldtel Bangladesh Holding, Ltd., 746 F.3d 42 (2d Cir. 2014), cert. denied 135 S. Ct. 401 (2014); Wirth v. Mars, Inc., No. 15-cv-1470, 2016 U.S. Dist. LEXIS 14552 (C.D. Cal. Sept. 10, 2015); Sud v. Costco Wholesale Corp., 229 F. Supp. 3d 1075 (N.D. Cal. 2017); Barber v. Nestle USA, Inc., 154 F. Supp. 3d 954 (C.D. Cal. 2015); Hodsdon v. Mars, Inc., 162 F. Supp. 3d 1016 (N.D. Cal. 2015); Dana v. The Hershey Co., 180 F. Supp. 3d 652 (N.D. Cal. 2016).

(174) Roe v. Bridgestone Corp., 492 F. Supp. 2d 988, 990–991 (S.D. Ind. 2007); Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1015 (7th Cir. 2011).

(175) Does I v. Gap, Inc., No. CV-01-0031, 2001 U.S. Dist. LEXIS 25035, at 5–8 (D. N. Mar. I. Nov. 26, 2001).

(176) Jason Burke, Bangladesh garment workers suffer poor conditions two years after reform vows, THE GUARDIAN (Apr. 22, 2014, 9:22 AM), http://www.theguardian.com/world/2015/apr/22/garment-workers-in-bangladesh-still-suffering-two-years-after-factory-collapse.

(177) Human Rights Watch, Bangladesh: Tragedy Shows Urgency of Worker Protections (Apr. 25, 2013), https://www.hrw.org/news/2013/04/25/bangladesh-tragedy-shows-urgency-worker-protections.

(178) Jim Yardley, Report on Deadly Factory Collapse in Bangladesh Finds Widespread Blame, N.Y. TIMES (May 22, 2013), http://www.nytimes.com/2013/05/23/world/asia/report-on-bangladesh-building-collapse-finds-widespread-blame.html.

(179) Erika George, Shareholder Activism and Stakeholder Engagement Strategies: Promoting Environmental Justice, Human Rights, and Sustainable Development Goals, 2019 WIS. L. REV. 298, 310–312 (2019); see also Eco Activists Labelled as Terrorists by Government, TELEGRAPH (Jan. 27, 2010, 7:00 AM), https://www.telegraph.co.uk/news/uknews/law-and-order/7081209/Eco-activists-labelled-as-terrorists-by-Govemment.html; Anastasia Moloney, Columbia’s Top Court Orders Government to Protect Amazon Forest in Landmark Case, REUTERS (Apr. 6, 2018, 9:46 AM), https://www.reuters.com/article/uscolombia-deforestation-amazon/colombias-top-court-orders-govemment-to-protect-amazonforest-in-landmark-case-idUSKCN1HD21Y.

(180) Rebecca Bratspies, Do We Need a Human Right to a Healthy Environment?, 13 SANTA CLARA J. L. 31, 38 (2015).

(181) REPORT OF THE U.N. CONFERENCE ON THE HUMAN ENVIRONMENT, U.N. DOC. A/CONF.48/14, at 2-65, and CORR. 1 (1972).

(182) Id.

(183) ENVIRONMENTAL MIGRATION PORTAL, http://www.environmentalmigration.iom.int/environmental-migration (last visited Feb. 14, 2020).

(184) The Environmental Justice Foundation is an environmental advocacy campaign group based in the United Kingdom that places primary emphasis on oceans, pesticides, climate, and cotton. See ENVIRONMENTAL JUSTICE FOUNDATION, https://ejfoundation.org (last visited Feb. 14, 2020).

(185) Protecting Climate Refugees, ENVIRONMENTAL JUSTICE FOUNDATION, https://ejfoundation.org/what-we-do/climate/protecting-climate-refugees (last visited Feb. 14, 2020).

(186) See, e.g., M. Akram Faizer, America First: Improving a Recalcitrant Immigration and Refugee Policy, 84 TENN. L. REV. 933, *933 (2017) (arguing that climate change is a likely factor behind several surging immigration crises and will only increase as a factor, while state failure to constructively respond to these crises has fueled backlashes by nativists and social conservatives); Amelia Hill, Migration: How Many People Are on the Move Around the World?, THE GUARDIAN (Sept. 10, 2018, 1:15 AM), https://www.theguardian.com/news/2018/sep/10/migration-how-many-people-are-on-the-move-around-the-world.

(187) See, e.g., Ronald F. Inglehart & Pippa Norris, Trump, Brexit, and the Rise of Populism: Economic Have-Nots and Cultural Backlash 2, 4 (Harv. Kennedy Sch. Faculty Research Working Paper Series, No. RWPl6-026, 2016) (demonstrating the average vote of populist parties across Europe has doubled since the 1960s, while their share of seats has tripled, and arguing recent populist victories support a “cultural backlash” thesis which implies further political divide is likely); Migrant Crisis: EU at Grave Risk, Warns France PM Valls, BBC NEWS (Jan. 22, 2016), http://www.bbc.com/news/world-europe-35375303 (warning that European countries were at risk of being “totally destabilised”).

(188) See generally Sarah Opitz Stapleton et al., Climate Change, Migration and Displacement, UNITED NATIONS DEV. PROGRAM 7 (Nov. 2017), https://www.odi.org/sites/odi.org.uk/files/resource-documents/iI 874.pdf. See also Mostafa Mahmud Naser, Climate Change, Environmental Degradation, and Migration: A Complex Nexus, 36 WM. & MARY ENVTL. L. POL’Y REV. 713, 714 (2012) (arguing for the recognition of and protection for migrants forced to move due to the demonstrated substantial role climate change plays in triggering human migrations, notwithstanding the existence of multicausality).

(189) United Nations Env’t Programme [UNEP], Climate Change & Human Rights, at 7-8 (Dec. 2015).

(190) Id.

(191) John H. Knox, Climate Change and Human Rights Law: Where We Are Now, BUSINESS & HUMAN RIGHTS RESOURCE CENTRE: CLIMATE DIALOGUES (2015), https://www.business-humanrights.org/en/climate-change-and-human-rights-law-where-we-are-now.

(192) See, e.g., County of San Mateo v. Chevron, 3:17-CV-04929-MEJ (N.D. Cal. 2017); People of the State of California v. BP plc, RG17875889 (Cal. Super Ct. 2017); see also Jeremy Hodges, Lauren Leatherby, & Kartikay Mehrotra, Climate Change Warriors’ Latest Weapon of Choice Is Litigation, BLOOMBERG (May 24, 2018), https://www.bloomberg.com/graphics/2018-climate-change-lawsuits/.

(193) See, e.g., Exxon Mobil Corp v. Schniderman, No. 1:17-CV-02301 (S.D.N.Y 2017).

(194) See, e.g., Ramirez v. Exxon Mobil Corp., 3:16-CV-3111 (N.D. Tex. 2016).

(195) See, e.g., Bill McKibben, The Movement to Divest from Fossil Fuels Gains Momentum, THE NEW YORKER (Dec. 21, 2017), https://www.newyorker.com/news/daily-comment/the-movement-to-divest-from-fossil-fuels-gains-momentum; Bill McKibben, Cashing Out from the Climate Casino, N.Y. TIMES (Dec. 15, 2017), https://www.nytimes.com/2017/12/15/opinion/finance-global-warming.html; Ben Cushing, As Divestment Movement Grows, Wells Fargo Feels the Heat, SIERRA CLUB (Aug. 1, 2017), https://www.sierraclub.org/lay-of-the-land/2017/08/divestment-movement-grows-wells-fargo-feels-heat.

(196) See, David Millon, Why is Corporate Management Obsessed with Quarterly Earnings and What Should be Done About It?, 70 GEO. WASH. L. REV. 890, 897–900 (2002); Natalie Mizik, The Theory and Practice of Myopic Management, 47 J. MARKETING RES. 594 (2010); David Millon, Two Models of Corporate Social Responsibility, 46 WAKE FOREST L. REV. 523 (2011).

(197) James D. Cox & Thomas Lee Hazen, CORPORATIONS 2–3 (2d ed. 2003).

(198) Id.

(199) (Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 626 (1819).

(200) See COX & HAZEN, supra note 197.

(201) See generally KENT GREENFIELD, CORPORATIONS ARE PEOPLE TOO: AND THEY SHOULD ACT LIKE IT TOO (2018); Carliss Chatman, The Corporate Personhood Two-Step, 18 NEV. L. J. 811 (2018).

(202) See generally ADAM WINKLER, WE THE CORPORATIONS: HOW AMERICAN BUSINESSES WON THEIR CIVIL RIGHTS (2018); VALERIE P. HANS, BUSINESS ON TRIAL: THE CIVIL JURY AND CORPORATE RESPONSIBILITY 84 (2000) (presenting data from interviews with jurors in corporate litigation and demonstrating that “absence of corporeal body appears to shape the way civil jurors consider the corporation and its liability”).

(203) Santa Clara County v. Southern Pacific Railroad Co., 18 F. 385 (1886).

(204) Warren J. Samuels, The Idea of the Corporation as a Person: on the Normative Significance of Judicial Language, in CORPORATIONS AND SOCIETY: POWER AND RESPONSIBILITY 113, 123 (Warren J. Samuels & Arthur S. Miller eds., 1987).

(205) See Oklahoma Press Publishing Co. v. Walling, 327 US 186, 66 S. Ct. 494 (1946).

(206) Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886).

(207) See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S. Ct. 1817 (1976); Citizens United v. FEC, 558 U.S. 310, 130 S. Ct. 876 (2010); Burwell v. Hobby Lobby, 573 U.S. 682, 134 S. Ct. 2751 (2014).

(208) John J. Flynn, The Jurisprudence of Corporate Personhood: The Misuse of a Legal Concept, in CORPORATIONS AND SOCIETY: POWER AND RESPONSIBILITY 130 (Warren J. Samuels & Arthur S. Miller eds., 1987).

(209) See COX & HAZEN, supra note 197, at 6.

(210) Adolf A. Berle & Gardiner C. Means, THE MODERN CORPORATION AND PRIVATE PROPERTY 357 (1934).

(211) Id. at 5.

(212) Id. at 6.

(213) See COX & HAZEN, supra note 197, at 328–331.

(214) Dodge v. Ford, 204 Mich. 459, 170 N.W. 668, 671 (1919).

(215) Dodge v. Ford Motor Co., 204 Mich. 459, 505, 170 N.W. 668, 683 (1919).

(216) Dodge v. Ford, at 684.

(217) See Millon, supra note 196. See also LYNN STOUT, THE SHAREHOLDER VALUE MYTH: HOW PUTTING SHAREHOLDERS FIRST HARMS INVESTORS, CORPORATIONS AND THE PUBLIC, 95–102 (2012) David Millon, Radical Shareholder Primacy, 10 U. ST. THOMAS L.J. 1013 (2013).

(218) See, e.g., Securities Exchange Act of 1934 § 14, 15 U.S.C. § 78m (2000); 15 U.S.C. § 78n; Securities Act of 1933 § 5, 15 U.S.C. § 77e; 15 U.S.C. § 78p(a); Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745. See also COX & HAZEN, supra note 197, at 327–380; Anupam Chander, Minorities, Shareholder and Otherwise, 113 YALE L.J. 119 (2003) (explaining how corporate law recognizes protection for minority shareholders as a central part of corporate governance).

(219) See generally, KENNETH E. GOODPASTER ET AL., CORPORATE RESPONSIBILITY: THE AMERICAN EXPERIENCE (2012); DAVID P. BARON, BUSINESS AND ITS ENVIRONMENT (7th ed. 2013).

(220) Archie B. Caroll & Kareem M. Shabana, The Business Case for Corporate Social Responsibility: A Review of Concepts Research and Practice, 12 INT’L J. MGMT. REV. 87 (2010) (explaining distinction between corporate social responsiveness and CSR, where social responsiveness understands business to be taking a reactive posture to societal needs and responding to the social environment rather than assuming responsibility, citing W.C. Frederick, From CSR1 to CSR2: The Maturing of Business and Society Thought, Working Paper 279, Graduate School of Business, University of Pittsburgh (1978))

(221) See, e.g., S. Prakash Sethi, Dimensions of Corporate Social Performance: An Analytic Framework, 17 CAL. MGMT. REV. 58–64 (1975) (introducing various aspects of “corporate social performance” and drawing distinctions between corporate “social obligation” in response to market forces or legal constraints, “social responsibility” in response to the normative expectations and values of society, and “social responsiveness” instead of responding to social concerns corporations anticipate and prevent potential problems).

(222) Archie B. Carroll, Corporate Social Responsibility: Evolution of a Definitional Construct, 38 BUS. & SOC’Y 268 (1999).

(223) Keith Davis, The Case For and Against Business Assumption of Social Responsibilities, 16 ACADEMY OF MGMT. J. 312, 313 (1973), reprinted in Carroll, supra note 222, at 277.

(224) Carroll, supra note 222, at 273–279.

(225) Id.

(226) See Carroll & Shabana, supra note 235, at 86.

(227) Id. citing Bert Spector, Business Responsibilities in a Divided World: The Cold War Roots of the Corporate Responsibility Movement, 9 ENTERPRISE & SOCIETY 314–336 (2008).

(228) For example, in his 1971 book, Business in Contemporary Society: Framework and Issues, Harold Johnson observed: “business takes place within a socio-cultural system that outlines through norms and business roles particular ways of responding to particular situations and sets out in some detail the prescribed ways of conducting business affairs.” (Harold Johnson, BUSINESS IN CONTEMPORARY SOCIETY: FRAMERWORK AND ISSUES (1971), reprinted in Carroll supra note 222, at 273.

(229) Carroll, supra note 222, at 273 (quoting Harold Johnson Business in Contemporary Society: Framework and Issues 50 (1971))

(230) Carroll, supra note 222, at 291–292.

(231) Michael E. Porter & Mark R. Kramer, Creating Shared Value, HARV. BUS. REV. 62–77 (2011).

(232) MILTON FRIEDMAN, CAPITALISM AND FREEDOM 133 (1962); Carroll, supra note 222, at 277.

(233) Powered by B Lab, BENEFIT CORP INFORMATION CENTER, available at http://benefitcorp.net/about-B. Lab. B Lab is currently directed by co-founders, Jay Coen Gilbert, Bart Houlahan, and Andrew Kassoy. See Our Team, B LAB, available at https://www.bcorporation.net/what-are-b-corps/the-non-profit-behind-b-corps/our-team.

(235) Id.

(236) Open Letter to Business Leaders, B LAB (Aug. 1, 2013), available at http://www.bcorporation.net/open-letter-to-business-leaders (letter included over six hundred signatories from benefit corporations).

(237) See The B Economy, CERTIFIED B CORPORATION, available at https://bcorporation.net/b-economy (“People don’t believe the existing economic system is working for them. They’re angry, and they’re right. That’s why we’re working to build a B Economy that works for everyone, for the long term . . . To build a B Economy, we need a new kind of business that balances purpose and profit.”).

(238) Dana Brakman Reiser, Benefit Corporations—A Sustainable Form of Organization, 46 WAKE FOREST L. REV. 591, 602 (2011). See, e.g., MD CODE ANN. § 5–6C–07(a)(1)(2011); VT STAT. ANN. § 21.09(a)(1)(c)(2011).

(239) Id. at 594. See, e.g., MD CODE ANN. § 5–6C–07(a)(1)(2011); NJ STATE ANN. § 14A:18–6(a)(2011); VT STAT. ANN. § 21.09(a)(1)(c)(2011); VA CODE ANN. § 13.1–877(A)(1)(2011).

(240) Reiser, supra note 238, at 600; Joanne Bauer & Elizabeth Umlas, Making Corporations Responsible: The Parallel Tracks of the B Corp Movement and the Business and Human Rights Movement, 122 BUS. & SOC. R. 285, 324–25 (2017).

(241) See, e.g., Anita Ramasastry, Corporate Social Responsibility Versus Business and Human Rights: Bridging the Gap Between Responsibility and Accountability, 14 J. HUM. RTS. 237–259 (2015); Florian Wettstein, From Side Show to Main Act: Can Business and Human Rights Save Corporate Responsibility? in BUSINESS AND HUMAN RIGHTS: FROM PRINCIPLES TO PRACTICE (Justine Nolan & Dorothée Baumann-Pauly, eds. 2016).

(242) See e.g., Tara Van Ho, United Kingdom Supreme Court—Extraterritorial Jurisdiction—Business and Human Rights—Civil Claims 114 AM. J. INT’L L. (explaining Vedanta v. Lungowe case in the United Kingdom Supreme Court concerning claims for negligence brought by Zambian claimants against an English parent company and its Zambian subsidiary for damages experienced in Zambia). For current corporate accountability litigation news, pleadings, and commentaries from around the world, see Business and Human Rights Resource Center Case Profiles, available at https://www.business-humanrights.org/en/big-issues/corporate-legal-accountability/case-profiles/ (listing cases filed in the United Kingdom, the Netherlands, and elsewhere raising human rights claims against business enterprises) (last visited Nov. 19, 2020).

(243) Judiciary Act, ch. 20, § 9, 1 Stat. 73, 77 (1789).

(244) 28 U.S.C. § 1350 (2001).

(245) Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980).

(246) Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997).

(247) Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 113, 133 S. Ct. 1659, 1662, 185 L. Ed. 2d 671 (2013).

(248) Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 113, 133 S. Ct. 1659, 1663, 185 L. Ed. 2d 671 (2013).

(249) Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 115, 133 S. Ct. 1659, 1664, 185 L. Ed. 2d 671 (2013).

(250) Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 127, 133 S. Ct. 1659, 1671, 185 L. Ed. 2d 671 (2013) (Breyer, J., concurring).

(251) Id.

(252) Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1390, 200 L. Ed. 2d 612 (2018).

(253) Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1435, 200 L. Ed. 2d 612 (2018) (Sotomayor J. dissenting).

(254) Id.

(255) The United States Supreme Court is set to hear Doe v. Nestle arguments on December 1, 2020 and is expected to settle the question of whether courts have authority under the ATS to impose liability on domestic corporations. See Doe v. Nestle, S.A., 929 F.3d 623 (9th Cir. 2019) (certiorari granted).

(256) See, e.g., Jad Mouawad, Shell to Pay $15.5 Million to Settle Nigerian Case, N.Y. TIMES (June 8, 2009), https://www.nytimes.com/2009/06/09/business/global/09shell.html; Duncan Campbell, Energy Giant Agrees Settlement with Burmese Villagers, THE GUARDIAN (Dec. 14, 2004 7:04 PM), https://www.theguardian.com/world/2004/dec/15/burma.duncancampbell.

(257) Ronen Shamir, Between Self-Regulation and the Alien Tort Claims Act: On the Contested Concept of Corporate Social Responsibility, 38 L. & SOC’Y REV. 635, 638 (2004).

(258) See, e.g., Yao Essaie Motto & Ors V. Traigura Ltd & Trafigura Beheer BV, Claim No. HQ06203370 (Nov. 2006).

(259) Rachel Chambers & Katherine Tyler, The UK Context for Business and Human Rights, in Lara Blecher, Nancy Kaymar Stafford, & Gretchen C. Bellamy, CORPORATE RESPONSIBILITY FOR HUMAN RIGHTS IMPACTS: NEW EXPECTATIONS AND PARADIGMS (ABA, 2014) (citing Statement from the Management Board of Trafigura Beheer BV (Nov. 16, 2012) at 316–317).

(260) See Mankayi v. AngloGold (CCT 40/10) [2011] ZACC 3; 2011 (5) BCLR 453 (CC); 2011 (3) SA 237 (CC) (Mar. 3, 2011); see also IRIN, Glimer of Justice for Sick Gold Miners in South Africa, THE GUARDIAN (Mar. 29, 2011).

(261) Warren J. Samuels, The Idea of the Corporation as a Person: on the Normative Significance of Judicial Language, in CORPORATIONS AND SOCIETY: POWER AND RESPONSIBILITY 113 (Warren J. Samuels & Arthur S. Miller eds., 1987).

(262) Id. at 114.

(263) UDHR, supra note 43.